§ 401.0 Introduction.

(a) The regulations in this part govern the process whereby the Commission will include projects in the Comprehensive Plan and extend them into an annual Water Resources Program. Also set forth herein are the procedures and definitions that the Commission will use in screening projects proposed by others to test their compatibility with the Comprehensive Plan. An interrelationship among these three requirements is apparent in the Delaware River Basin Compact.

(b) Article 13 of the Compact calls for the adoption of the Comprehensive Plan and Water Resources Program. These documents are defined as follows:

(1) Comprehensive Plan. A plan that includes all public and private projects and facilities which are required in the judgment of the Commission for optimum planning, development, conservation, use, management, and control of the water resources of the Delaware Basin to meet present and future needs. The Comprehensive Plan is dynamic and will be periodically revised.

(2) Water Resources Program. An annual presentation, based upon the Comprehensive Plan, of the quantity and quality of water resources needs of the area to be served during the ensuing six years or for such reasonably foreseeable period as the Commission may determine, balanced by existing and proposed projects required to satisfy such needs, including all public and private projects to be anticipated, together with a separate statement of the projects proposed to be undertaken by the Commission during such period.

(c) To protect the integrity of the Comprehensive Plan and avoid conflicts of jurisdiction, the Compact provides generally, in Article 11, for cooperative planning of all public projects, and more specifically, in section 3.8 of the Compact, confers certain regulatory authority upon the Commission. Section 3.8 provides for a review of water resources projects to determine two matters: First, whether the project will have "a substantial effect on the water resources of the basin;" and secondly, whether a project having such an effect would "substantially impair or conflict with the Comprehensive Plan." The basic concept is thus both comprehensive and integrated planning and development.

(d) A project may enter the Comprehensive Plan in the discretion of the Commission whenever the project is ready for such action, both on its own merits and in relation to other projects which are part of the Plan. Subpart A of this part develops the concept of the Comprehensive Plan and the procedure to be followed for inclusion of new projects or modification of existing ones. The Water Resources Program represents a selection of projects by the Commission taken from the Comprehensive Plan. These are projects which the Commission recommends for

action during the ensuing six-year period. Procedures that the Commission will follow in developing the Water Resources Program are contained in Subpart B of this part.

(e) The regulatory power of the Commission under section 3.8 of the Compact extends to all public and private projects. However, since the Compact also provides for cooperative planning of public projects (Article 11), a special procedure to accelerate Commission approval of such projects is provided as part of the process of adoption of a Water Resources Program. As set forth in Subpart C of this part, the sponsor of a public project has a choice of routes for Commission approval: Where advance approval is necessary or desirable, the sponsor may secure approval through the process of project inclusion in the Water Resources Program; and this is an opportunity that will be available at a specified time each year. Where the sponsor may for any reason prefer the alternate course, the public project may be submitted for review under section 3.8 of the Compact. In brief, approval of a public project as ready for action within the Water Resources Program will have the effect of approval for purposes of section 3.8, but omission of a project from the Water Resources Program still leaves the door open for the project sponsor to proceed under section 3.8. Finally, under the regulations in this part private projects are required to proceed under section 3.8.

Subpart A-Comprehensive Plan

§ 401.1 Scope.

This subpart shall govern the submission, consideration and inclusion of projects into the Comprehensive Plan.

§ 401.2 Concept of the Plan.

(a) The Comprehensive Plan, as required in section 13.1 of the Compact, will provide for the immediate and long-range development and use of the water resources of the basin. The Plan will include all public and private projects and facilities which are required, in the judgment of the Commission, for the optimum planning, development, conservation, use, manage

ment and control of the water re

sources of the basin, in light of present and foreseeable future needs. It will consist of statements of policy, criteria and standards, as well as the principal physical projects, objectives and programs that will be involved in the 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 Comprehensive Plan."

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 Commission ***" 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 Director 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 non-structural measure.

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

(e) Relation to other parts of the existing Comprehensive Plan.

(f) 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.

§ 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 these regulations. 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.

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

§ 401.8 Custody and availability.

The Comprehensive Plan shall be and remain in the custody of the Executive Director. The Plan, including all maps, charts, descriptions and supporting data shall be and remain a public record open to examination during the regular business hours of the Commission, under such safeguards as the Executive Director may determine to be necessary to preserve and protect the Plan against loss, damage or destruction. Copies of the Comprehensive Plan or any part or parts thereof shall be made available by the Executive Director for public sale at a price covering the cost of production and distribution.

Subpart B-Water Resources
Program

§ 401.21 Scope.

This subpart shall govern the submission, consideration and inclusion of projects into the Water Resources Program.

§ 401.22 Concept of the Program.

The Water Resources Program, as defined and described in section 13.2 of

the Compact, will be a reasonably detailed amplification of that part of the Comprehensive Plan which the Commission recommends for action within the ensuing six-year period. That part of the Program consisting of a presentation of the water resources needs of the basin will be revised only at such intervals as may be indicated to reflect new findings and conclusions, based upon the Commission's continuing planning programs.

§ 401.23 Procedure.

Each project included in the Water Resources Program shall have been previously included in the Comprehensive Plan, except that a project may be added to both the Plan and the Program by concurrent action of the Commission. The project's sponsor shall furnish the following information prior to the inclusion of the project in the Water Resources Program:

(a) The Comprehensive Plan data brought up-to-date for the period of the Water Resources Program.

(b) Specific location and dimension of a structural project, and specific language of a standard, policy or other non-structural proposal.

(c) The plan of operation of a structural project.

(d) The specific effects of a non-structural project.

(e) Sufficient data to indicate a workable financial plan under which the project will be carried out.

(f) A timetable for implementation.

§ 401.24 Preparation and adoption.

The Water Resources Program will be prepared and considered by the Commission for adoption annually. Projects required to satisfy the basin needs during the period covered by the Program may be classified as follows:

(a) "A" list. This shall include public projects which require no further review, and inclusion in such list shall be deemed to be approved for the purposes of section 3.8 of the Compact.

(b) "B" list. This shall include public projects not included in the "A" list and privately sponsored projects which are proposed or anticipated by the Commission.

Any publc project which has been included in the Comprehensive Plan but is not on the "A" list of the current Water Resources Program, at the option of the sponsor, may be submitted for review and approval under section 3.8 of the Compact in accordance with Subpart C of this part.

§ 401.26 Inventory of other projects.

Each Water Resources Program will include, for information purposes only, an inventory of projects approved during the previous year pursuant to section 3.8 of the Compact but which are not part of the Comprehensive Plan or Water Resources Program.

Subpart C-Project Review Under Section 3.8 of the Compact

§ 401.31 Scope.

This subpart shall govern the submission and review of projects under section 3.8 of the Delaware River Basin Compact.

§ 401.32 Concept of 3.8.

Section 3.8 is intended to protect and preserve the integrity of the Comprehensive Plan. This section of the Compact provides:

No project having a substantial effect on the water resources of the basin shall hereafter be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the Commission, subject to the provisions of sections 3.3 and 3.5. The Commission shall approve a project whenever it finds and determines that such project would not substantially impair or conflict with the Comprehensive Plan and may modify and approve as modified, or may disapprove any such project whenever it finds and determines that the project would substantially impair or conflict with such Plan. The Commission shall provide by regulation for the procedure of submission, review and consideration of projects, and for its determinations pursuant to this section. Any determination of the Commission hereunder shall be subject to judicial review in any court of competent jurisdiction.

§ 401.33 Administrative agreements.

The Executive Director is authorized and directed to enter into cooperative