PROPOSED RULEMAKING
DELAWARE RIVER BASIN COMMISSION
[25 PA. CODE CH. 901]
Amendments to Administrative Manual--Rules of Practice and Procedure
[27 Pa.B. 4726] The Delaware River Basin Commission (Commission) will hold a public hearing on Wednesday, October 22, 1997. The hearing is open to the public and scheduled to begin at 3 p.m. The hearing is being held to receive comments on proposed amendments to its Rules of Practice and Procedure which are intended to delete obsolete provisions, to clarify certain provisions of the rules and better inform the signatory parties, applicants and the general public with regard to the Commission's practices and procedures. The proposed revisions conform the rules to existing Commission interpretations and practices.
The deadline for inclusion of written comments in the hearing record will be announced at the hearing.
The public hearing will be held in the Goddard Conference Room of the Commission's offices at 25 State Police Drive, West Trenton, New Jersey. Written comments should be submitted to Susan M. Weisman, Delaware River Basin Commission, P. O. Box 7360, West Trenton, New Jersey 08628. Persons wishing to testify are requested to notify the Secretary in advance.
For further information contact Susan M. Weisman, Delaware River Basin Commission, (609) 883-9500 ext. 203.
Background and Rationale
The Rules of Practice and Procedure of the Delaware River Basin Commission have been modified and changed periodically since they were originally adopted December 13, 1961. There has not been a comprehensive review of these rules, however, for more than 20 years.
The proposed revisions are summarized below.
1. Deletion of Article 4, Environmental Impact Statements, and Related Sections
Existing Article 4 sets forth DRBC's requirements with regard to environmental impact statements and reviews. Although these provisions have remained in DRBC's Rules, a copy of DRBC Resolution No. 80-11 suspending those provisions of the Commission's Rules of Practice and Procedure relating to environmental assessments has been inserted at the end of the existing rules. Since the adoption of this Resolution in 1980, the Commission has not conducted environmental assessments pursuant to DRBC's rules. The continued inclusion of these suspended sections, however, has been a source of confusion and misunderstanding to many individuals and groups interested in DRBC's review requirements. For example, when DRBC recently solicited public comments concerning its regulations for controlling toxic pollutants in the Delaware River Estuary, comments were received suggesting that DRBC had not complied with the environmental review requirements under its rules.
When Resolution No. 80-11 to suspend was adopted, the Resolution would have permitted reinstatement of environmental reviews if ''financial resources are developed.'' The experiences of the last 17 years, and the financial constraints that have developed recently, make it clear that Federal or other funding is not likely to be available for the foreseeable future.
To avoid continuing confusion, the deletion of Article 4 is proposed. DRBC's review of projects, however, will continue to require all projects to comply with all environmental and other policies in the Commission's Comprehensive Plan.
2. Review of Projects Having a Nonsubstantial Impact on Basin Waters
In 1976 the Commission adopted Resolution No. 76-20 which provided two administrative changes designed to reduce the project review activity of DRBC staff.
The first was an attempt to provide more flexibility in the determination of what constitutes substantial projects resulting in more projects determined to be nonsubstantial and not subject to Commission review. Experience with a few projects indicated the process was not cost effective and staff reverted back to strictly following the exemptions list in the Rules Section 2.3.5(a). The 1976 revisions included in Sections 2.3.4 and 2.3.5(d) which provided for this procedure have not been applied since 1978.
The second administrative change provided for in Sections 2.3.5(e), 2.3.9(b) and (c) was to have state staff review and submit a determination (called an action report) that each project forwarded to the Commission did not impair or conflict with the DRBC's Comprehensive Plan. Even though three states signed new administrative agreements to implement this procedure, state staffs did not provide the determinations and the procedure was never implemented.
Section 2.3.10 is proposed to be deleted and all rules regarding hearings are proposed to be consolidated in revised Article 6.
SUMMARY OF PROPOSED REVISIONS
1. Introduction
In view of the changes included within the proposed revision, the Introduction has been rewritten to update the description of what is included in the Commission's Rules of Practice and Procedure.
2. Article 1--Comprehensive Plan
The proposed revisions to this article clarify the meaning of Comprehensive Plan within DRBC's rules. The revisions further clarify the procedure related to application for inclusion of projects within the Comprehensive Plan and the review by the Commission of proposals for changes and additions to the Comprehensive Plan. These revisions conform with existing Commission interpretation of the provisions within Article 1.
3. Article 2--Water Resources Program
No proposed revisions to this article are recommended at this time.
4. Article 3--Project Review Under Section 3.8 of the Compact
(a) The proposed revisions to Article 3 relating to environmental reviews and nonsubstantial projects are discussed above.
(b) The proposed revisions would delete Section 2.3.5.1. The regionalization policy was slightly modified with the adoption of revised Water Quality Regulations in December 1992 (Section 2.30, Basin Regulation--Water Quality). Deleting these requirements eliminates confusion and allows the more recent and flexible policy to control. The revised rule would add (6) in Section 2.1.4 requiring applications to include a discussion of the alternates considered and in Section 2.3.8 (a) ''Exhibits to Accompany Application,'' it would revise (8) to include analysis and conclusions of regional water supply and waste water investigations.
(c) The proposed revision would also delete Section 2.3.5.2. This policy was adopted in 1971, Resolution No. 71-3, when the DRBC was involved in four or five nuclear plants and several major expansions or new fossil fuel plants, all by the seven major electric utilities serving the Basin. Planning at that time centered around mega stations of 1000 to 3000 Megawatts and use of multi MGD of water. Future locations of such large single use water demands was essential for any future water resource planning. A consortium of the utilities was formed known as DRBEUG (Delaware River Basin Electric Utilities Group) to address this DRBC requirement. Between 1971 and 1989, periodic siting studies were submitted to DRBC. In 1989 DRBEUG explained that they no longer could present a comprehensive siting study since the regulators were now encouraging NUGs (Non Utility Generators) and they could not in any way appear to represent these nonutility electric generators. Essentially, the major utilities have abandoned plans for any new major stations. New applications for several years now have been nonutility projects and generally no more than 200 MW. After several meetings between DRBEUG and staff, it was concluded that the siting study would no longer serve its intended purpose for DRBC.
(d) The remaining sections are intended to clarify the Commission's procedures with regard to Section 3.8 applications and the review thereof.
5. Article 4--Environmental Impact Statements
The Commission proposes deletion of the existing provisions of Article 4 as discussed above. Article 4 will be reserved for future use.
6. Article 5--Review in Water Quality Cases
The proposed revisions to Article 5 clarify that this article applies to administrative actions and decisions by the Executive Director. The procedures for review, hearing and decisions of objections to the Executive Director's actions and decisions will be pursuant to Article 6. The time for requesting a hearing is extended to 30 days to conform with the 30 day period provided for in Article 6. The remaining proposed changes are to broaden the wasteload allocations section to cover allocations in general (including proposed allocations of toxics) as well as the existing allocation program of carbonaceous oxygen demand.
7. Article 6--Conduct of Hearings
The proposed revisions in this article reflect the practices employed by the Commission in connection with hearings, clarify the application of Article 6 to contested hearings and codify existing practices with regard to such hearings.
8. Articles 7, 8 and 9--No changes to these articles are proposed at this time.
The subject of the hearing will be as follows:
Amendments to the Administrative Manual--Rules of Practice and Procedure
Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
DELAWARE RIVER BASIN COMMISSION
RULES OF PRACTICE AND PROCEDURE
INTRODUCTION[These regulations govern the process whereby the Commission will include projects in the] The Delaware River Basin Compact requires the Commission to formulate and adopt a 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] Water Resources Program. In addition, the Compact provides in Section 3.8 that no project having a substantial effect on the water resources of the Basin shall be undertaken unless it shall have been first submitted to and approved by the Commission. The Commission is required to approve a project whenever it finds and determines that such project would not substantially impair or conflict with the Comprehensive Plan. [An interrelationship among these three requirements is apparent in the Delaware River Basin Compact.] Section 3.8 further provides that the Commission shall provide by regulation for the procedure of submission, review and consideration of projects and for its determinations pursuant to Section 3.8.
[Article 13 of the Compact calls for the adoption of the Comprehensive Plan and Water Resources Program. These documents are defined as follows:
Comprehensive Plan. A plan that includes all public and] The Comprehensive Plan consists of all public and those private projects and facilities which [are required in the judgment of the Commission for] the Commission has directed be included therein. It also includes those documents and policies which the Commission has determined should be included within the Comprehensive Plan as being needed to insure 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.] subject to periodic review and revision as provided in Sections 3.2 and 13.1 of the Compact.
The Water Resources Program[. An annual presentation,] is based upon the Comprehensive Plan[,]. It is required to be updated annually and to include a systematic presentation 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.] The Commission's review and modification of the Water Resources Program is conducted pursuant to the provisions of Articles 3.2 and 13.2 of the Compact.
[To protect the integrity] The Commission's Rules of Practice and Procedure govern the adoption and revision 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], the Water Resources Program, the exercise of the Commission's authority pursuant to the provisions of Article 3.8 and other actions of the Commission mandated or authorized by the Compact.
These Rules of Practice and Procedure extend to the following areas of Commission responsibility and regulation:
Article 1--Comprehensive Plan.
Article 2--Water Resources Program.
Article 3--Project Review Under 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.].
[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. Article 1 of the Rules]
Article 4--Deleted (Previously suspended July 23, 1980).
Article 5--Appeals or Objections to Decisions of the Executive Director in Water Quality Cases.
Article 6--Administrative Hearings.
Article 7--Penalties and Settlements in Lieu of Penalties.
Article 8--Public Access to the Commission's Records and Information.
Article 9--General Provisions.
These rules are subject to Commission revision and modification from time to time as the Commission may determine. The Commission reserves the right to waive any Rule of Practice and Procedure [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 Article 2 of these regulations.] it determines should not be applicable in connection with any matter requiring Commission action. All actions by the Commission, however, shall comply fully with the applicable provisions of the Compact.
[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. Under Article 2 and Article 3 of these regulations, 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 will still leave the door open for the project sponsor to proceed under Section 3.8. Finally, under these regulations, private projects are required to proceed under Section 3.8.]
ARTICLE 1
COMPREHENSIVE PLANSection 2.1.1 Scope. This article shall govern the submission, consideration, and inclusion of projects into the Comprehensive Plan.
2.1.2 Concept of the Plan. The Comprehensive Plan[, as required in Section 13.1 of the Compact, will provide] shall be adopted, revised and modified as provided in Sections 3.2 and 13.1 of the Compact. It is the Commission's responsibility to adopt the Comprehensive Plan, after consultation with water users and interested public bodies, for the immediate and long-range development and [use] uses of the water resources of the Basin. The Plan [will] shall include [all] the public and private projects and facilities which the Commission determines are required[, in the judgment of the Commission,] for the optimum planning, development, conservation, [use,] utilization, management[,] and control of the water resources 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. The Plan will be a body of documents expressing a systematic set of] to meet present and future needs. In addition to the included projects and facilities, the Comprehensive Plan consists of the statements of policies, and programs that the Commission determines are necessary to govern the proper development and use of the River Basin. The documents within the Comprehensive Plan expressing the Commission's policies and programs for the future, [and] including the means for carrying them out[. It will be expressed], may be set forth through narrative text, maps, charts, schedules, budgets[,] and other appropriate means.
[From time to time specific] Specific projects and facilities and statements of policy and programs may be incorporated, deleted[,] or modified from time to time to reflect changing conditions, research, results[,] and new technology. [At any given time the] The degree of detail [describing] described in particular projects [will] may vary depending upon the [state] status of their development.
2.1.3 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.] Projects of the federal agencies affecting the water resources of the Basin, subject to the limitations in Section 1.4 of the Compact, shall be governed by Section 11.1 of the Compact. Projects of the signatory states, their political subdivisions and public corporations affecting the water resources of the Basin, shall be governed by the provisions of Section 11.2 of the Compact.
[(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.'')
2.1.4 Amendments and Revisions. The Comprehensive Plan will be open, upon application of any interested party, for review and inclusion of new projects and for] Section 2.1.4 Project Applications and Proposed Revisions and Changes. Applications for inclusion of new public projects and the deletion or alteration of previously included [projects. To this end, the Commission will] public projects may be submitted by signatory parties and agencies or political subdivisions thereof. Owners or sponsors of privately owned projects may submit applications for the inclusion of new private projects and the deletion or alteration of previously included private projects in which the applicant has an interest. The Commission may also 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] application or proposal shall be submitted in such form as may be required by the Executive Director to facilitate consideration by the Commission[, and].
Applications for projects shall include at least the following information:
(1) Purpose or purposes, including quantitative measures of physical [benefits] benefit anticipated from the proposal[ .];
(2) [Approximate location, dimensions (if a structural project) and land area required.] The location, physical features and total area required;
[(3) Draft or description of a proposed standard, policy or other nonstructural measure.
(4)] (3) Forecast of the cost [(if structural)] or effect on the utilization of water resources [(if a nonstructural measure).]; and
[(5)] (4) Relation to other parts of the existing Comprehensive Plan.
[(6) 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.]
(5) A discussion of conformance with Commission policies included in the Comprehensive Plan.
(6) A discussion of the alternatives considered.
[2.1.5 Review of Proposal]
2.1.5 Review of Applications. Following staff study, examination, and review of each [proposal, the Commission will] project application, the Commission shall hold a public hearing upon notice thereon as provided in paragraph 14.4(b) of the Compact and may take such action on [the proposal as may be appropriate, and will hold such public hearings thereon as are required by the Compact.] a project application as it finds to be appropriate.
[2.1.6 Further Action.] 2.1.6 Proposed Revisions and Changes. Proposals for changes and additions to the Comprehensive Plan submitted by any agency of the signatory parties or any interested person, organization or group shall identify the specific revision or change recommended. In order to permit adequate Commission consideration of any proposal, the Executive Director may require such additional information as may be needed. Review or consideration of such proposals shall be based upon the recommendation of the Executive Director and the further direction of the Commission.
2.1.7 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 1, March 28, 1962).](March 28, 1962). Such review may include consideration of proposals submitted by the signatory parties, agencies or political subdivision thereof or other interested parties. The amendments, additions, and deletions adopted by the Commission will be compiled and the Plan as so revised [will be republished annually.] shall be made available for public inspection.
[2.1.7] 2.1.8 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 these regulations.
(b) Any public project not having a substantial effect on the water resources of the Basin, as defined in Article 3 of these regulations, may proceed without reference to Article 11 of the Compact.
[2.1.8] 2.1.9 Custody and Availability. The Comprehensive Plan shall be and remain in the custody of the Executive Director. The Plan, including all maps, charts, [descriptions] description 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.
ARTICLE 2 (No change.)
ARTICLE 3
PROJECT REVIEW UNDER SECTION 3.8 OF THE COMPACTSection 2.3.1 Scope. This article shall govern the submission and review of projects under Section 3.8 of the Delaware River Basin Compact.
2.3.2 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.''2.3.3 Administrative Agreements. The Executive Director is authorized and directed to enter into cooperative Administrative Agreements with federal and state regulatory agencies concerned with the review of projects under federal or state law as follows:
(a) To facilitate the submission and review of applications and the determinations required under Section 3.8 of the Compact;
(b) To avoid unnecessary duplication of staff functions and hearings required by law; and
(c) For such other and different purposes as he may deem feasible and advantageous for the administration of the Compact or any other law.[; and
(d) Provided that any such Administrative Agreement shall be effective solely for purposes of intergovernmental cooperation and the failure of any applicant to comply with the provisions of any such agreement shall not prejudice his application or the consideration thereof.]
2.3.4 Submission of Project Required. Any project which may have a substantial effect on the water resources of the Basin, except as provided in paragraph (d) of this section, shall be submitted to the Commission for a determination as to [whether the project will have a substantial effect on the water resources of the Basin, and, if so,]whether the project impairs or conflicts with the Comprehensive Plan, as follows:
(a) Where the project is subject to review by a state or federal agency which has entered into an Administrative Agreement with the Commission, such project will be referred to the Commission in accordance with the terms of the Administrative Agreement, and appropriate instructions will be prepared and issued by the Executive Director for guidance of project sponsors and applicants.
(b) Where no other state or federal agency has jurisdiction to review and approve a project, or no Administrative Agreement is in force, the project sponsor shall apply directly to the Commission.
(c) Any project proposal, which may have a substantial effect on the water resources of the Basin, may be received and reviewed by the staff informally in conference with the project sponsor during the preliminary planning phase to assist the sponsor to develop the project in accordance with the Commission's requirements.
(d) Whenever a project sponsored by one of the signatory parties, or by any agency, political subdivision or public corporation thereof, has been included in the Water Resources Program in the ''A List'' classification, the project, to the extent of such inclusion and as described in the Program, shall be deemed approved for the purposes of Section 3.8 of the Compact.
(e) Whenever a project is subject to review and approval by the Commission under this section, there shall be no substantial construction activity thereon, including related preparation of land, unless and until the project has been approved by the Commission; provided, however, that this prohibition shall not apply to the drilling of wells for purposes of obtaining geohydrologic data, nor to in-plant control and pretreatment facilities for pollution abatement.
2.3.5 Classification of Projects for Review under Section 3.8 of the Compact.
(a) Except as the Executive Director may specially direct by notice to the project owner or sponsor, or as a state or federal agency may refer under paragraph (c) of this section, a project in any of the following classifications will be deemed not to have a substantial effect on the water resources of the Basin and is not required to be submitted under Section 3.8 of the Compact:
(1) The construction of new impoundments or the enlargement or removal of existing impoundments, for whatever purpose, when the storage capacity is less than 100 million gallons;
(2) A withdrawal from ground water for any purpose when the daily average gross withdrawal during any [calendar month] 30 consecutive day period does not exceed 100,000 gallons;
(3) A withdrawal from impoundments or running streams for any purpose when the daily average gross withdrawal during any [calendar month] 30 consecutive day period does not exceed 100,000 gallons;
(4) The construction of new [municipal] domestic sewage treatment facilities or alteration or addition to existing [municipal] domestic sewage treatment facilities when the design capacity of such facilities is less than a daily average rate of 10,000 gallons per day in the drainage area to Outstanding Basin Waters and Significant Resource Waters or less than 50,000 gallons per day elsewhere in the Basin; and all local sewage collector systems and improvements discharging into authorized trunk sewage systems;
(5) The construction of new facilities or alteration or addition to existing facilities for the direct discharge to surface or ground waters of industrial wastewater having design capacity of less than 10,000 gallons per day in the drainage area to Outstanding Basin Waters and Significant Resource Waters or less than 50,000 gallons per day elsewhere in the Basin; except where such wastewater contains toxic concentrations of waste materials;
(6) A change in land cover on major ground water infiltration areas when the amount of land that would be altered is less than three square miles;
(7) Deepening, widening, cleaning or dredging existing stream beds or relocating any channel, and the placement of fill or construction of dikes, on streams within the Basin except the Delaware River and tidal portions of tributaries thereto, and streams draining more than one state;
(8) Periodic maintenance dredging;
(9) Encroachments on streams within the Basin caused by:
a. floating docks and anchorages and buoys and navigational aids;
b. temporary construction such as causeways, cofferdams and falsework required to facilitate construction on permanent structures;
(10) Bridges and highways unless they would pass in or across an existing or proposed reservoir or recreation project area as [shown] designated in the Comprehensive Plan;
(11) Liquid petroleum products pipelines and appurtenances designed to operate under pressures less than 150 psi; local electric distribution lines and appurtenances; local communication lines and appurtenances; local natural and manufactured gas distribution lines and appurtenances; local water distribution lines and appurtenances; and local sanitary sewer mains, unless such lines would involve significant disturbance of ground cover affecting water resources;
(12) Electric transmission or bulk power system lines and appurtenances; major trunk communication lines and appurtenances; natural and manufactured gas transmission lines and appurtenances; major water transmission lines and appurtenances; unless they would pass in, on, under or across an existing or proposed reservoir or recreation project area as [shown] designated in the Comprehensive Plan; unless such lines would involve significant disturbance of ground cover affecting water resources;
(13) Liquid petroleum products pipelines and appurtenances designed to operate under pressures of more than 150 psi, unless they would pass in, on, under or across an existing or proposed reservoir or recreation project area as [shown] designated in the Comprehensive Plan, or in, on, under or across any stream within the Basin; unless such lines would involve significant disturbance of ground[,] cover affecting water resources;
[(14) Landfill projects limited to disposal of solid inert wastes such as earth, rock, gravel, concrete, asphalt paving fragments, glass, plaster, plaster board, rubber products, steel mill slag, clay, clay products, plastics, asbestos shingles, and similar materials, unless such projects are located on flood plains delineated by the Commission or a signatory state;]
(14) Landfill projects [which may contain organic or liquid wastes that have a substantial effect on water resources of the Basin,]unless, no state-level review and permit system is in effect; broad regional consequences are anticipated; or the standards or criteria used in state level review are not adequate to protect the water of the Basin for the purposes prescribed in the Comprehensive Plan;
(15) Draining, filling or otherwise altering marshes or wetlands when the area affected is less than 25 acres; provided; however, that areas less than 25 acres shall be subject to Commission review and action (1) where neither a state nor a federal level review and permit system is in effect, and the Executive Director determines that a project is of major regional or interstate significance requiring action by the Commission, or (2) when a Commissioner or the Executive Director determines that the final action of a state or federal permitting agency may not adequately reflect the Commission's policy as to wetlands of the Basin. In the case of a project affecting less than 25 acres for which there has been issued a state or federal permit, a determination to undertake review and action by the Commission shall be made no later than 30 days following notification of the Commission of such permit action. The Executive Director, with the approval of the Chairman, may at any time within the 30-day period inform any permit holder, signatory party or other interested party that the Commission will decline to undertake review and action concerning any such project;
(16) The diversion or transfer of water from the Delaware River Basin (exportation) whenever the design capacity is less than a daily average rate of 100,000 gallons;
(17) The diversion or transfer of water into the Delaware River Basin (importation) whenever the design capacity is less than a daily average rate of 100,000 gallons except when the imported water is wastewater; [and]
(18) The diversion or transfer of wastewater into the Delaware River Basin (importation) whenever the design capacity is less than a daily average rate of 50,000 gallons[.]; and
(19) Temporary or short term projects determined to have nonsubstantial impact on the water resources of the Basin by the Executive Director.
(b) All other projects which have or may have a substantial effect on the water resources of the Basin shall be submitted to the Commission in accordance with these regulations for determination as to [whether the project will have a substantial effect on the water resources of the Basin and, if so,] whether the project impairs or conflicts with the Comprehensive Plan. Among these are projects involving the following (except as provided in paragraph (a) of this section):
(1) Impoundment of water;
(2) Withdrawal of ground water;
(3) Withdrawal of water from impoundment or streams;
(4) Diversion of water into or out of the Basin;
(5) Deepening or widening of existing stream beds, channels, anchorages, harbors or turning basins, or the construction of new or enlarged channels, anchorages, harbors or turning basins, or the dredging of the bed of any stream or lake and disposal of the dredged spoil, when the nature or location of the project would affect the quantity or quality of ground or surface waters, or fish and wildlife habitat;
(6) Discharge of pollutants into surface or ground waters of the Basin;
(7) Facilities designed to intercept and transport sewage to a common point of discharge; and pipelines and electric power and communication lines;
(8) Facilities for the direct discharge to surface or ground waters of industrial wastewater;
(9) Projects that substantially encroach upon the stream or upon the 100-year flood plain of the Delaware River or its tributaries;
(10) Change in land cover on major ground water infiltration areas;
(11) Hydroelectric power projects, including pumped storage projects;
(12) Projects or facilities of federal, state and local agencies such as highways, buildings and other public works and improvements, affecting the water and related land resources of the Basin;
(13) Draining, filling or otherwise altering marshes or wetlands;
(14) Regional wastewater treatment plans developed pursuant to the Federal Water Pollution Control Act;
(15) Landfills and solid waste disposal facilities affecting the water resources of the Basin;
(16) State and local standards of flood plain regulation;
(17) Electric generating or cogenerating facilities designed to consumptively use in excess of 100,000 gallons per day of water during any 30-day period; and
(18) Any other project that the Executive Director may specially direct by notice to the project sponsor or land owner as having a potential substantial water quality impact on waters classified as Special Protection Waters.
(c) Whenever a state or federal agency determines that a project falling within an excluded classification (as defined in paragraph (a) of this section) may have a substantial effect on the water resources of the Basin, such project may be referred by the state or federal agency to the Commission for action under these Rules.
(d) Except as otherwise provided by Section 2.3.8 the sponsor shall submit an application for review and approval of a project included under paragraph (b) above through the appropriate agency of a signatory party. Such agency will transmit the application or a summary thereof to the Executive Director, pursuant to Administrative Agreement, together with available supporting materials filed in accordance with the practice of the agency of the signatory party. [The Executive Director will thereupon determine for the Commission whether or not the proposed project could have a substantial effect upon the water resources of the Basin within the meaning of the Compact and the Rules of Practice and Procedure. In making such determination the Executive Director shall be guided by his findings as to the following factors:
(1) The impact of the project on environmentally sensitive land areas or species of plant or animal life;
(2) The potential of the project and its distribution or collection systems to induce significant changes in numbers, distribution or character of population or economic activity;
(3) The magnitude of proposed water withdrawal or waste discharge in relation to minimum streamflow, aquifer yield or water quality;
(4) The size of the project and distribution of collection system and areal extent and duration of its environmental impact;
(5) The effect of the project on public health, safety or general welfare, and historic and cultural properties;
(6) The effect of the project on surface or ground waters in another state;
(7) The effect of the project on transfer of water into or out of the Basin or from one sub-basin to another;
(8) The cost of the project and nature and magnitude of resources required for its implementation;
(9) The effect of the project on flood flows and stormwater runoff;
(10) Any other facts which in a particular case may be relevant to the protection of the integrity of the Comprehensive Plan; and
(11) The impact of the project on aquatic life including fisheries.
(e) Projects determined by the Executive Director to have a substantial effect will be subject to approval by the Commission pursuant to Section 3.8 and Article 11 of the Compact (to the extent applicable). Projects determined by the Executive Director not to have a substantial effect on the water resources of the Basin will not be subject to further review or action by the Commission. The Executive Director shall notify the sponsor of the project, the agency of the signatory party reviewing the project, and the governing body of the municipality, and the planning board of the county in which the project is located of his initial determination on the question of substantial effect. Notice to such interested parties shall be given by certified mail, return receipt requested. The Executive] [Director shall also notify by regular mail all members of the Commission and of the Federal Field Committee. He shall also cause to be published in a newspaper of general circulation in that municipality, at least once, a notice of such determination. If no objection is made to the Executive Director's initial determination, it shall become final ten days after publication as above. Any interested party objecting to the determination may, within ten days of the newspaper publication, object to such determination and appeal to the Executive Director by letter for reconsideration. Following such reconsideration, if requested, the Executive Director shall serve notice upon the agency of the signatory party, the applicant and each such objector of his final determination. Any such party may appeal such final determination to the Commission by notice in writing served upon the Executive Director within 14 days after the service of the Executive Director's decision upon reconsideration. The Commission will determine such appeal at a regular meeting thereafter.
2.3.5.1 Water Pollution Control Projects--Regional Requirements.
(a) The use of regional solutions to water pollution problems, with the least number of separate treatment plants which may be efficient in the particular circumstances, is required whenever feasible. Each waste treatment project shall be submitted to the Commission not later than the completion of preliminary engineering for review of its compliance with this and other requirements of the Comprehensive Plan.
(b) In reviewing a project for compliance with this section, the Commission will consider the following matters, comparing regional versus separate treatment systems:
(1) Construction costs and economies of various scales of development;
(2) Operating costs and economies of various scales of operation;
(3) Capability of handling industrial wastes with and without pretreatment;
(4) Capability to assimilate high peak flows and temporary shock loads or emergency conditions;
(5) Space and facilities for sludge disposal;
(6) Personnel skills required and their availability for operation and supervision;
(7) Capacity to absorb growth; and the relative times required to place a separate and a regional system in operation;
(8) Desirability of the site selection alternatives for the treatment plant in view of considerations of efficiency of land use, potential service area, and relative transmission distances;
(9) The effect for a reasonable distance downstream on the quality of the receiving waters; and
(10) Effectiveness of the proposal in identifying all sources of pollution, and in achieving a coordinated, comprehensive and orderly plan for abatement of pollution in the region.
(c) A preliminary engineering report shall accompany each application and shall include factual findings and conclusions with respect to items (1) through (10) above.
(d) For the purpose of this regulation, ''a region'' is defined to mean one or more drainage areas or parts thereof. A ''regional solution'' is one which is based upon a feasibility study of the region for which a single system of sewage collection and treatment would be physically and economically feasible.
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