Rules of Practice and Procedure

<RULE> DELAWARE RIVER BASIN COMMISSION <CFR>18 CFR Part 401</CFR> <SUBJECT>Rules of Practice and Procedure</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Delaware River Basin Commission. <HD SOURCE="HED">ACTION:</HD> Final rule; correcting amendments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Delaware River Basin Commission is amending its Rules of Practice and Procedure to: resolve ambiguities around the automatic termination of project approvals issued by the Commission and make conforming amendments to related provisions as appropriate; update the Commission's Water Resources Program and Project Review procedures to better conform them to current practice; remove incorrect references to the Federal Freedom of Information Act in the Commission's regulations providing for access to public records; align pronouns with the Commission's policies regarding diversity, inclusion, and belonging; and correct certain cross-references. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective July 22, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Pamela M. Bush, Esquire, Commission Secretary and Assistant General Counsel, at <E T="03">pam.bush@drbc.gov</E> (preferred) or 609-477-7203. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> The Delaware River Basin Commission (“DRBC” or “Commission”) is a Federal-interstate compact agency formed by the enactment of concurrent legislation by four states and the United States in 1961  <SU>1</SU> <FTREF/> to manage the water resources of the Delaware River Basin (the “Basin”) without regard to political boundaries. The Commission's members are, <E T="03">ex officio,</E> the governors of the states of Delaware, New Jersey, New York, and Pennsylvania, and the Division Engineer of the U.S. Army Corps of Engineers North Atlantic Division, who represents the United States. <FTNT> <SU>1</SU>  United States Public Law 87-328, Approved Sept. 27, 1961, 75 Statutes at Large 688; 53 Delaware Laws, Ch. 71, Approved May 26, 1961; New Jersey Laws of 1961, Ch. 13, Approved May 1, 1961; New York Laws of 1961, Ch. 148, Approved March 17, 1961; Pennsylvania Acts of 1961, Act. No. 268, Approved July 7, 1961. </FTNT> <HD SOURCE="HD1">Background</HD> The Commission's Rules of Practice and Procedure (“RPP”), comprising part 401 of title 18 of the Code of Federal Regulations, govern the adoption and revision of the Commission's Comprehensive Plan and Water Resources Program, exercise of the Commission's authority pursuant to the provisions of Article 3.8 of the Delaware River Basin Compact (the “Compact”), and other actions of the Commission mandated or authorized by the Compact, including but not limited to the administration of public access to records and information in the Commission's possession. On September 28, 2023, the Commission published a proposed rule (88 FR 66722) to amend the RPP to: resolve ambiguities around the automatic termination of project approvals issued by the Commission and make conforming amendments to related provisions as appropriate; update the Commission's Water Resources Program and Project Review procedures to better conform them to current practice; remove incorrect references to the Federal Freedom of Information Act in the Commission's regulations providing for access to public records; and align pronouns with the Commission's policies regarding diversity, inclusion, and belonging. A notice of the proposed amendments appeared in the Delaware Register of Regulations, 27 Del. Reg. 196, 206, on October 1, 2023, the New Jersey Register, 55 N.J.R. 2179(a), on October 16, 2023, the New York Register, 45 N.Y. Reg. 9, on October 11, 2023, and the Pennsylvania Bulletin, 53 Pa. B. 6698, on October 28, 2023. Opportunity for public input on the proposed rules was provided during a comment period that ran from September 28, 2023, through November 30, 2023. In addition to soliciting written comments, the Commission accepted oral comment at two hearings conducted via Zoom and telephone. The Commission received a total of 209 public comment submissions, consisting of 199 written submissions and ten oral comments. The submissions typically consisted of a set of comments from a single individual or organization, and they typically addressed more than one aspect or provision of the proposed amendments. In many instances, a single submission included a set of comments by two or more individuals or organizations. Some submissions consisted of petitions or a set of comments with multiple signers. Similar or identical comments were in many instances submitted by individual commenters using form letters or template language provided by others. Commenters were not limited to a single submission, and some commenters offered two or more submissions. The “199” figure represents the number of individual written submissions the Commission received during the comment period without regard to the number of comments within a submission, the number of signers on a single submission, or the number of individuals making a joint submission. The Commission reviewed all comments and supporting material it received during the comment period. The staff, in consultation with the Commissioners, prepared a Comment and Response Document summarizing the comments on the proposed rule and setting forth the Commission's responses and revisions in detail. By Resolution No. 2024—06 on June 5, 2024, the Commission adopted the Comment and Response Document simultaneously with its adoption of the final rule. <HD SOURCE="HD1">Changes From the Proposed Rule</HD> The final rule differs from the proposed in the following respects: <E T="03">Action on request for extension.</E> The final rule provides that the Commissioners, not the Executive Director, will approve or deny all requests for extended or renewed approval under amended § 401.41(a) and (b), respectively. In conjunction with this change, rather than establishing a prescribed extension term of five years, as originally proposed, the final rule at § 401.41(a) provides for the Commissioners to grant an extension of <E T="03">up to</E> five years. <E T="03">Eligibility for extension.</E> Under the final rule, to qualify for extension of a docket approval that would otherwise expire under § 401.41, in addition to demonstrating that approved activities, site conditions, and the Comprehensive Plan have not materially changed, the docket holder (project sponsor) will be required to demonstrate that it is diligently pursuing the project, which can be shown through its planning, construction or project operational activities, its project expenditures, its efforts to secure government approvals necessary for the project, or its active participation in appeals of government decisions on its applications for government approvals. The docket holder will not be required to demonstrate that it has expended a fixed, minimum dollar amount, a proposal to which commenters objected. Nor will the docket holder be obligated to show that it has expended a substantial sum in relation to the project cost, as the rule originally provided, or that it has expended a fixed percentage representing a substantial sum in relation to the total cost of the project, as some commenters proposed. In the Commission's view, those approaches are impracticable where the project costs consist primarily of construction costs, and where the sponsor could not lawfully or reasonably commence construction because all final approvals have not been secured. <E T="03">Public process.</E> In accordance with the final rule, the Commission will publish notice that it has received a request for a docket extension under § 401.41(a) and provide an opportunity for written comment of at least ten days' length on whether the docket holder has demonstrated all elements requisite for an extension— <E T="03">i.e.,</E> that the approved activities, site conditions, and Comprehensive Plan have not materially changed, and that the project sponsor has diligently pursued the project in reliance on the Commission's approval. The project sponsor will be afforded an opportunity to respond to the comments received but will not be obligated to do so. The Commission will provide notice at least ten days prior to the date of a business meeting at which the Commissioners consider action on a request pursuant to § 401.41(a). <E T="03">Public hearing.</E> The final rule provides that a public hearing on a request for a docket extension under § 401.41(a) will be held if three or more Commission members request such a hearing in writing to the Executive Director or by vote at a public meeting. <E T="03">Administrative continuance.</E> Under the final rule, a docket that is the subject of a request for extension under § 401.41(a) filed at least 90 days before the docket's expiration will be administratively continued pending final Commission action on the request in the event that such action occurs after the otherwise effective date of termination. <E T="03">Construction complete.</E> The final rule clarifies that if the activities authorized by the Commission's docket are limited to construction activities, an extension in accordance with § 401.41(a) is no longer required once construction is complete. Because some dockets issued for construction activities impose ongoing obligations on docket holders, the final rule further clarifies that the expiration of the docket, including any approved extension, does not eliminate ongoing docket obligations expressly identified as such in the docket approval. <E T="03">Language of final § 401.41(b).</E> The final language adopted for § 401.41(b) has been modified from the originally proposed language to more accurately reflect that the burden is on the docket holder to demonstrate eligibility for an extension un ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 36k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━