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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsMarch 2016

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Amendments to the Rules of Practice and Procedure to Allow Each Signatory Party and the DRBC to Administer a Single Process for the Review and Adjudication of Projects
Proposed: Delaware Register of Regulations (18 DE Reg. 926-930 (06/01/2015)) on June 1, 2015
Adopted: December 9, 2015 by the Delaware River Basin Commission, Pamela M. Bush, Esq., Secretary.
Filed: February 12, 2016 as a final regulation.
Effective: March 4, 2016 (thirty days after publication in the Federal Register, which occurred on February 3, 2016).
Summary: By Resolution No. 2015-9 on December 9, 2015, the Delaware River Basin Commission (“DRBC” or “Commission”) approved amendments to the Commission’s Administrative Manual Part II – Rules of Practice and Procedure to provide for the One Process/One Permit Program. The Program is intended to promote interagency cooperation and collaboration on shared mission objectives, achieve regulatory program efficiencies, avoid unnecessary duplication of effort, and reduce the potential for confusion on the part of regulated entities and the public regarding regulatory requirements applicable to projects.
Contacts: For technical information, David Kovach, 609-477-7264. For legal information, Pamela Bush, 609-477-7203.
Supplementary Information: The Delaware River Basin Commission is a federal-interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states – Delaware, New Jersey, New York and Pennsylvania – and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the federal government. The Commission is not subject to the requirements of the Delaware Administrative Procedure Act. The purpose of this notice is to advise the public that duly adopted regulations of the Commission have been filed with the state in accordance with Section 14.2 of the Delaware River Basin Compact.
Background. This final rule amends the Administrative Manual Part II – Rules of Practice and Procedure by the addition of a new section 2.3.11 (18 CFR § 401.42), providing for DRBC and each of the parties to the Delaware River Basin Compact (United States Public Law 87-328, Approved September 27, 1961, 75 U.S. Statutes at Large 688; 53 Delaware Laws, Chapter 71, Approved May 26, 1961; New Jersey Laws of 1961, Chapter 13, Approved May 1, 1961; New York Laws of 1961, Chapter 148, Approved March 17, 1961; and Pennsylvania Acts of 1961, Act No. 268, Approved July 7, 1961 (“the Compact”)) – Delaware, New Jersey, New York, Pennsylvania and the federal government (“Signatory Parties”) – to coordinate and collaborate in the administration of a single process for the review and adjudication of certain projects, including, where appropriate, issuance of a single permit or other approval instrument.
Currently, the sponsors of many water resource-related projects in the Delaware River Basin are required to apply to both the DRBC and a state agency, among others, for approvals. New §2.3.11 (18 CFR 401.42) of the Commission’s Rules of Practice and Procedure provides for the DRBC and the administrative agencies of the Signatory Parties to identify regulatory programs that by mutual agreement will be managed through a single process that may result in one decision or approval. The program, known as One Process/One Permit (hereinafter, “the Program” or “One Permit”) is intended to promote interagency cooperation and collaboration on shared mission objectives, achieve regulatory program efficiencies, avoid unnecessary duplication of effort, and reduce the potential for confusion on the part of regulated entities and the public regarding regulatory requirements applicable to projects. Importantly, the rule expressly preserves the authorities of the DRBC and each of its Signatory Parties and effects no change to federal, state or DRBC substantive standards and requirements.
Procedural background. The Commission introduced One Permit to the basin community during meetings with regulated entities, environmental organizations and other stakeholders on February 12 and March 3, 2015 and through publication on the DRBC website of a press release and a set of FAQs on February 27, 2015. During the Commission’s quarterly public meeting on March 10-11, 2015, the Commission approved Resolution No. 2015-4, in part authorizing and directing the Executive Director to initiate rulemaking to amend DRBC’s Rules of Practice and Procedure to provide specific authorization for and define the scope of the Program. A notice of proposed rulemaking was published on the Commission’s web site on May 17, 2015.
Notice of the proposed amendments appeared in the Federal Register at 80 FR 28567, May 19, 2015; Delaware Register of Regulations, 18 DE Reg. 1002, June 1, 2015; New Jersey Register, 47 N.J.R. 1256, June 1, 2015; New York State Register, May 27, 2015 (page 4); and Pennsylvania Bulletin, 45 Pa. B. 2611, May 30, 2015. The Commission held a public hearing on the proposed rule on June 9, 2015 and accepted written comments on the rule through July 1, 2015.
Changes to the draft rule. In its action adopting the final rule, the Commission also adopted a detailed comment and response document identifying the commenters and comments received during the comment period and setting forth the Commission’s responses, including changes to the rule to address concerns and respond to recommendations submitted by stakeholders.
To ensure continued public access to information on the status of all projects under review pursuant to the Delaware River Basin Compact, including those administered under One Permit, a new paragraph D.2. (18 CFR 401.42(d)(2)) was added, establishing that participating Signatory Party agencies will notify DRBC at least once monthly of applications received under the Program; and paragraph D.5 18 CFR 401.42(d)(5)) was revised to establish that the list that the Commission will maintain of projects being administered under One Permit will be posted on the Commission’s website. Additional benefits of these changes are described in the comment and response document.
Additional Materials: Additional materials can be found on the Commission’s web site at www.drbc.net. These include DRBC Resolution No. 2015-9 approving the final rule, at http://www.nj.gov/drbc/library/documents/Res2015-09 OPOPwith-final-rule-text.pdf; and the Commission’s detailed comment and response document, which identifies commenters, summarizes comments received on the proposed rule, and sets forth the Commission’s responses, at http://www.nj.gov/drbc/library/documents/OPOP/comment-and-response_OPOP.pdf.
The version of the Rules of Practice and Procedure that is currently posted on DRBC’s website at http://www.nj.gov/drbc/library/documents/admin_manual.pdf uses DRBC’s original numbering system, which is different from that of the Code of Federal Regulations. In the DRBC codification, the One Permit Program rules are set forth at new section 2.3.11. A list of the CFR units and corresponding DRBC units follows. A complete stand-alone version of the Rules of Practice and Procedure using the CFR system will be available on the DRBC website shortly.
(a) Purpose. The purpose of the One Permit Program set forth in this section is to provide the opportunity for the environmental agency and/or other administrative agency of a Signatory Party (“Signatory Party Agency”) and the Commission to coordinate and collaborate in the administration of a single process for the review and adjudication of projects. The One Permit Program allows the Signatory Party Agency and Commission to incorporate requirements and determinations of both entities in a single permit or other approval instrument, pursuant to a duly adopted Administrative Agreement under paragraph (d) of this section.
(b) Scope. This section applies to all projects that:
(c) Regulatory programs. Regulatory programs eligible for administration under the One Permit Program may include but are not limited to those concerning: Basin discharges, Basin water withdrawals, and Basin flood plain requirements.
(d) Procedure. The categories of projects covered and the procedures for processing applications under the One Permit Program shall be set forth in one or more Administrative Agreements between the Commission and the Signatory Party Agency that have been adopted by the Commission following a duly noticed public hearing and are in form and substance acceptable to the Commission and the Signatory Party Agency, consistent with the following:
(e) Comprehensive Plan projects. Articles 11 and 13 of the Compact require certain projects to be included in the Comprehensive Plan. To add a project not yet included in the Comprehensive Plan, the project sponsor shall submit a separate application to the Commission. If following its review and public hearing the Commission approves the addition of the project to the Comprehensive Plan, the Commission’s approval will include such project requirements as are necessary under the Compact and Commission regulations. All other project approvals that may be required from the Signatory Party Agency or the Commission under regulatory programs administered pursuant to this section may be issued through the One Permit Program. An application for renewal or modification of a project in the Comprehensive Plan that does not change the project so substantially as to render it a new and different project may be submitted only to the Signatory Party Agency unless otherwise specified in the Administrative Agreement.
(f) Retention of Commission review and enforcement authorities. Notwithstanding any other provision of this section, any Commissioner or the Executive Director may designate for Commission review any project that is reviewable under the Compact. Nothing in this section shall limit the authority of the Commission to exercise its review authority under the Compact and applicable Commission regulations. Similarly, although Administrative Agreements executed pursuant to this section may include collaborative and cooperative compliance and enforcement procedures, nothing in this section shall limit the authority of the Commission to exercise its enforcement authority under the Compact and applicable regulations.
(g) Exhaustion of Signatory Party administrative remedies prerequisite to appeal. Before commencing an action in a court of appropriate jurisdiction challenging any final action taken by a Signatory Party Agency under this section, the appellant must first exhaust its administrative remedies under the law of the Signatory Party whose agency issued the decision at issue.
(h) Fees. The Commission shall establish and maintain a schedule of fees for any or all of the services it renders pursuant to this section. The applicable fee(s) for Commission services rendered pursuant to this section shall be those set forth in DRBC Resolution No. 2009-2 (available at http://www.nj.gov/drbc/library/documents/Res2009-2.pdf) for the review and renewal of project approvals. Project sponsors shall pay such fees, if any, directly to the Commission in accordance with the current schedule and applicable rules.
(i) Effect of One Permit Program on Commission dockets.
(j) Modification of rules of practice and procedure to conform to this section. Any project subject to review under an Administrative Agreement duly adopted under paragraph (d) of this section, shall be governed by this section and not §§ 401.4, 401.5, 401.6, 401.8, 401.34(a), (c) and (e), 401.37, 401.38 and 18 CFR part 401, subpart F, where they are inconsistent with the procedures provided in this section.
(k) No interference with Supreme Court decree. In accordance with Sections 3.3(a) and 3.5 of the Compact, nothing in this section shall grant the authority to any Signatory Party Agency to impair, diminish or otherwise adversely affect the diversions, compensating releases, rights, conditions, obligations and provisions for administration thereof provided in the United States Supreme Court decree in New Jersey v. New York, 347 U.S. 995 (1954) (“Decree”). Any such action shall be taken only by the Commission with the unanimous consent of the parties to the Decree or upon unanimous consent of the members of the Commission following a declaration of a state of emergency in accordance with Section 3.3(a) of the Compact.
Last Updated: December 31 1969 19:00:00.
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