[Federal Register Volume 81, Number 22 (Wednesday, February 3, 2016)]
[Rules and Regulations]
[Pages 5585-5589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02048]


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DELAWARE RIVER BASIN COMMISSION

18 CFR Part 401


Amendments to the Rules of Practice and Procedure To Allow Each 
Signatory Party and the Commission To Administer a Single Process for 
the Review and Adjudication of Projects

AGENCY: Delaware River Basin Commission.

ACTION: Final rule.

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SUMMARY: The Delaware River Basin Commission is amending its 
regulations 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.

DATES: This final rule will be effective March 4, 2016.

FOR FURTHER INFORMATION CONTACT: Technical information: David Kovach,

[[Page 5586]]

609-477-7264. Legal information: Pamela Bush, 609-477-7203.

SUPPLEMENTARY INFORMATION:

Background

    The Delaware River Basin Commission (``DRBC'' or ``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.
    Specifically, this final rule amends subchapter A--Administrative 
Manual, part 401--Rules of Practice and Procedure, subpart C--Project 
Review Under Section 3.8 of the Compact by the addition of a new 
section 401.42, providing for DRBC and each of the parties to the 
Delaware River Basin Compact (United States Pub. L. 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 section 401.42 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.
    In accordance with this final rule, administrative agreements 
between DRBC and Signatory Party agencies to implement the Program may 
be approved by the Commission after each such agreement undergoes a 
duly noticed public hearing. In accordance with Resolution No. 2015-4 
of the Commission, which was adopted on March 11, 2015 following a 
public hearing on March 10, 2015, an administrative agreement between 
the DRBC and the New Jersey Department of Environmental Protection 
(NJDEP) was executed, in part to demonstrate how the Program would 
operate in New Jersey. With adoption of the final rule, DRBC and NJDEP 
will fully implement their March 2015 agreement.
    Notably, each Signatory Party may choose whether and when to 
initiate an agreement or agreements with DRBC under the Program. No 
draft agreements with Signatory Party agencies other than the NJDEP to 
implement the Program have yet been published for comment.

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 Web site 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. Notice of the 
proposed amendments was published on the Commission's Web site on May 
17, 2015.
    Notice of the proposed amendments also appeared in the Federal 
Register at 80 FR 28567, May 19, 2015; in the 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 proposal on June 9, 2015 and 
accepted written comments on the rule through July 1, 2015.

Rule Highlights

    Notable aspects of the final rule include the following:
    <bullet> Section 401.42(b) provides that applications for approvals 
required by the Compact and Commission regulations, but not within the 
scope of the Program, must continue to be submitted to the Commission.
    <bullet> 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, Sec.  
401.42(d)(2) establishes that participating Signatory Party agencies 
will notify DRBC at least once monthly of applications received under 
the Program; and Sec.  401.42(d)(5) establishes that the list that the 
Commission will maintain of projects being administered under One 
Permit will be posted on the Commission's Web site.
    <bullet> Section 401.42(h) provides that DRBC's current Project 
Review Fee Schedule as set forth in Resolution No. 2009-2 will be the 
operative fee schedule for projects reviewed under the Program.
    <bullet> Section 401.42(i) provides mechanisms for the efficient 
disposition of Commission dockets during the transition to One Permit. 
Section 401.42(i)(1) provides that for projects covered by the Program, 
the most recent docket will be deemed administratively continued when a 
renewal application is timely submitted to the Signatory Party Agency. 
Section 401.42(i)(2) provides that unless the Executive Director or the 
Commission otherwise directs, upon the Signatory Party Agency's final 
action on an application for a project subject to the Program, (a) any 
existing or administratively continued docket will terminate as to all 
of its provisions and conditions within the scope of the Signatory 
Party Agency approval; and (b) such docket will continue in effect as 
to any provisions and conditions outside the scope of the Signatory 
Party Agency approval, including for example, addition of a project to 
the Comprehensive Plan.
    <bullet> The rule authorizes Signatory Party agencies, in 
accordance with an applicable administrative agreement, to issue in 
their approvals for projects to be administered under the Program the 
finding and determination required by section 3.8 of the Compact that a 
project subject to section 3.8 review does not substantially impair or 
conflict with the Commission's Comprehensive Plan (``the finding''). 
Section 401.42(d)(4) makes clear that where in accordance with an 
applicable administrative agreement implementing One Permit the finding 
continues to be made by the Commission, the Signatory Party agency may 
include the Commission's finding in the agency's approval, together 
with

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any conditions identified by the Commission as necessary to support it, 
thereby achieving a unified permit.
    <bullet> The final rule also makes clear (1) that participation in 
the program by Signatory Party agencies is voluntary; and (2) that the 
scope of a Signatory Party Agency's participation is defined by an 
administrative agreement between DRBC and the agency that has been duly 
adopted in accordance with Sec.  401.42(d).

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 proposal, 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 Web site at http://www.nj.gov/drbc/library/documents/admin_manual.pdf uses DRBC's original numbering 
system, which is different from that of the CFR. In the original 
system, 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 Web site shortly.

------------------------------------------------------------------------
          CFR Unit                  DRBC Unit         Title or Caption
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Title 18 Conservation of
 Power and Water Resources.
Chapter III--Delaware River
 Basin Commission.
Subchapter A--Administrative  Administrative
 Manual.                       Manual [Part II]
Part 401--Rules of Practice   Rules of Practice
 and Procedure.                and Procedure
Subpart C--Project Review     Article 3--Project    ....................
 Under Section 3.8 of the      Review Under
 Compact.                      Section 3.8 of the
                               Compact.
401.42......................  2.3.11..............  One Permit Program.
401.42(a)...................  2.3.11 A............  Purpose.
401.42(b)...................  2.3.11 B............  Scope.
401.42(c)...................  2.3.11 C............  Regulatory programs.
401.42(d)...................  2.3.11 D............  Procedure.
401.42(e)...................  2.3.11 E............  Comprehensive Plan
                                                     projects.
401.42(f)...................  2.3.11 F............  Retention of
                                                     Commission review
                                                     and enforcement
                                                     authorities.
401.42(g)...................  2.3.11 G............  Exhaustion of
                                                     Signatory Party
                                                     administrative
                                                     remedies
                                                     prerequisite to
                                                     appeal.
401.42(h)...................  2.3.11 H............  Fees.
401.42(i)...................  2.3.11 I............  Effect of One Permit
                                                     Program on
                                                     Commission dockets.
401.42(j)...................  2.3.11 J............  Modification of
                                                     Rules of Practice
                                                     and Procedure to
                                                     conform to this
                                                     section.
401.42(k)...................  2.3.11 K............  No interference with
                                                     Supreme Court
                                                     decree.
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List of Subjects in 18 CFR Part 401

    Administrative practice and procedure, Project review, Water 
pollution control, Water resources.

    For the reasons set forth in the preamble, the Delaware River Basin 
Commission amends part 401 of title 18 of the Code of Federal 
Regulations as follows:

PART 401--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 401 continues to read as follows:

    Authority:  Delaware River Basin Compact (75 Stat. 688), unless 
otherwise noted.

Subpart C--Project Review Under Section 3.8 of the Compact

0
2. Add Sec.  401.42 to read as follows:


Sec.  401.42  One Permit Program.

    (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:
    (1) Are reviewable under the Compact;
    (2) Meet the thresholds for review set forth in Sec.  401.35 of 
these Rules of Practice and Procedure;
    (3) Are subject to review by a Signatory Party Agency under its own 
statutory authorities; and
    (4) Are within regulatory programs that have been identified in a 
duly adopted Administrative Agreement between the Commission and a 
Signatory Party Agency under this section. For any project that 
requires an approval under the Compact that is outside the scope of the 
Signatory Party Agency's approval issued in accordance with an 
Administrative Agreement under this section, the project sponsor shall 
apply to the Commission in accordance with procedures established by 
the Commission.
    (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:

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    (1) Except as provided in paragraphs (b) and (e) of this section or 
in an Administrative Agreement that has been duly executed by the 
Commission and the Signatory Party Agency under this section, an 
application for initial approval, renewal or revision of any project 
subject to the One Permit Program shall be filed only with the 
Signatory Party Agency.
    (2) To enable the Commission to compile and make available to the 
public a current list of pending applications for projects within the 
Basin subject to Commission jurisdiction, the Signatory Party Agency 
shall notify the Commission at least monthly of applications the 
Signatory Party has received during the preceding month that may be 
eligible for review under the One Permit Program.
    (3) For those categories of projects identified in the 
Administrative Agreement as requiring Commission input, the Commission 
staff shall provide the Signatory Party Agency with such input, 
including where specified by the Administrative Agreement, a 
recommendation as to any conditions of approval that may be necessary 
or appropriate to include in the project review determination under 
Section 3.8 of the Compact as to those regulatory programs identified 
in an Administrative Agreement in accordance with paragraph (b) of this 
section.
    (4) Unless the Signatory Party Agency disapproves the project or 
the Administrative Agreement provides for separate Commission action 
under Section 3.8 of the Compact, the Signatory Party Agency shall make 
the project review determination under Section 3.8 of the Compact, as 
specified in the Administrative Agreement, as to the regulatory program 
covered by the Signatory Party Agency's approval and include the 
determination and any associated conditions of approval within the 
permit or other approval instrument that it issues to the project 
sponsor. If in accordance with the applicable Administrative Agreement 
the determination under Section 3.8 of the Compact is made by the 
Commission, the Signatory Party Agency may include the determination 
together with any associated conditions of approval in its permit or 
other approval instrument covering the project.
    (5) The Commission will maintain on its Web site a list of all 
projects being administered pursuant to the Program.
    (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.
    (1) Unless the Executive Director or Commission otherwise directs, 
if a docket holder submits, or has submitted, a timely application to a 
Signatory Party Agency for a project subject to review under an 
Administrative Agreement duly adopted under paragraph (d) of this 
section, the most recent docket for the project shall, upon expiration, 
be deemed administratively continued until final action is taken in 
accordance with paragraph (i)(2) of this section.
    (2) Unless the Executive Director or Commission otherwise directs, 
upon a Signatory Party Agency's final action on an application for a 
project subject to the One Permit Program:
    (i) Any existing or administratively continued docket for such 
project shall terminate as to all of its provisions and conditions that 
pertain to regulatory programs administered by the Signatory Party 
Agency under the Administrative Agreement (``the Covered Programs''); 
and
    (ii) The docket shall continue in effect as to any provisions and 
conditions not pertaining only to Covered Programs, including, as 
applicable, the incorporation of the project in the Commission's 
Comprehensive Plan.
    (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 Sec. Sec.  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.


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    Dated: January 15, 2016.
Pamela M. Bush,
Commission Secretary and Assistant General Counsel.
[FR Doc. 2016-02048 Filed 2-2-16; 8:45 am]
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