Last updated on December 27th, 2024 at 07:41 pm
Title 18—Conservation of Power and Water Resources–Volume 2
CHAPTER III—DELAWARE RIVER BASIN COMMISSION
SUBCHAPTER A—ADMINISTRATIVE MANUAL
PART 400 [RESERVED]
PART 401—RULES OF PRACTICE AND PROCEDURE
§ 401.0 Introduction.
(a) The Delaware River Basin Compact requires the Commission to formulate and adopt a Comprehensive Plan and 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. 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.
(b) The Comprehensive Plan consists of all public and those private projects and facilities which the Commission has directed be included therein. It also includes those documents and policies which the Commission has determined should be included with 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 subject to periodic review and revision as provided in Sections 3.2 and 13.1 of the Compact.
(c) The Water Resources Program 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 for such reasonably foreseeable period as the Commission may determine, balanced by existing and proposed projects required to satisfy such needs. 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.
(d) The Commission’s Rules of Practice and Procedure govern the adoption and revision of the Comprehensive Plan, 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.
(e) These Rules of Practice and Procedure extend to the following areas of Commission responsibility and regulation:
(f) 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 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.
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 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 uses of the water resources of the Basin. The Plan shall include the public and private projects and facilities which the Commission determines are required for the optimum planning, development, conservation, utilization, management and control of the water resources of the Basin 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, including the means for carrying them out, may be set forth through narrative text, maps, charts, schedules, budgets and other appropriate means.
(b) 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. The degree of detail described in particular projects may vary depending upon the status of their development.
§ 401.3 Other agencies.
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.
§ 401.4 Project applications and proposed revisions and changes.
(a) Applications for inclusion of new public projects and the deletion or alteration of previously included 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 application or proposal shall be submitted in such form as may be required by the Executive Director to facilitate consideration by the Commission.
(b) Applications for projects shall include at least the following information:
(1) Purpose or purposes, including quantitative measures of physical benefit anticipated from the proposal;
(2) The location, physical features and total area required.
(3) Forecast of the cost or effect on the utilization of water resources;
(4) Relation to other parts of the existing Comprehensive Plan;
(5) A discussion of conformance with Commission policies included in the Comprehensive Plan; and
(6) A discussion of the alternatives considered.
§ 401.5 Review of applications.
Following staff study, examination, and review of each 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 a project application as it finds to be appropriate.
§ 401.6 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.
§ 401.7 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 (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 shall be made available for public inspection.
§ 401.8 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 this part. Any project which is materially changed 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 a material change within the meaning of this part.
(b) Any public 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.
§ 401.9 Custody and availability.
The Comprehensive Plan shall be and remain in the custody of the Executive Director. The Plan, including all maps, charts, 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.
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. That part of the Program consisting of a presentation of the water resource 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.
The Water Resources Program will be prepared and considered by the Commission for adoption annually. Projects 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. In such instances, the project’s sponsor shall furnish the information listed in § 401.4(b) prior to the inclusion of the project in the Comprehensive Plan and 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 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.
§ 401.34 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 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.
§ 401.35 Classification of projects for review under Section 3.8 of the Compact.
(a) Except as the Commission may specially direct by notice to the project owner or sponsor, 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 when the daily average gross withdrawal during any 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 30 consecutive day period does not exceed 100,000 gallons;
(4) The construction of new domestic sewage treatment facilities or alteration or addition to existing 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:
(i) Floating docks and anchorages and buoys and navigational aids;
(ii) 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 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 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 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, 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 where neither a state nor a Federal level review and permit system is in effect;
(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;
(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 non-substantial 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 this part for determination as to 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 tuning 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) Landfills and solid waste disposal facilities affecting the water resources of the Basin;
(15) State and local standards of flood plain regulation;
(16) 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
(17) Any other project that the Commission 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) Regardless of whether expressly excluded from review by paragraph (a) of this section, any project or class of projects that in the view of the Commission could have a substantial effect on the water resources of the basin may, upon special notice to the project sponsor or landowner, be subject to the requirement for review under section 3.8 of the Compact.
§ 401.36 Water supply projects—Conservation requirements.
Maximum feasible efficiency in the use of water is required on the part of water users throughout the Basin. Effective September 1, 1981 applications under Section 3.8 of the Compact for new water withdrawals subject to review by the Commission shall include and describe water-conserving practices and technology designed to minimize the use of water by municipal, industrial and agricultural users, as provided in this section.
(a) Applications for approval of new withdrawal from surface or ground water sources submitted by a municipality, public authority or private water works corporation whose total average withdrawals exceed one million gallons per day shall include or be in reference to a program prepared by the applicant consisting of the following elements:
(1) Periodic monitoring of water distribution and use, and establishment of a systematic leak detection and control program;
(2) Use of the best practicable water-conserving devices and procedures by all classes of users in new construction or installations, and provision of information to all classes of existing users concerning the availability of water-conserving devices and procedures; and
(3) A contingency plan including use priorities and emergency conservation measures to be instituted in the event of a drought or other water shortage condition. Contingency plans of public authorities or private water works corporations shall be prepared in cooperation with, and made available to, all municipalities in the area affected by the contingency plan, and shall be coordinated with any applicable statewide water shortage contingency plans.
(b) Programs prepared pursuant to paragraph (a) of this section shall be subject to any applicable limitations of public utility regulations of the signatory party in which the project is located.
(c) Applications for approval of new industrial or commercial water withdrawals from surface or ground water sources in excess of an average of one million gallons per day shall contain
(1) A report of the water-conserving procedures and technology considered by the applicant, and the extent to which they will be applied in the development of the project; and
(2) A contingency plan including emergency conservation measures to be instituted in the event of a drought or other water shortage. The report and contingency plan shall estimate the impact of the water conservation measures upon consumptive and non-consumptive water use by the applicant.
(d) Applications for approval of new agricultural irrigation water withdrawals from surface or ground water sources in excess of one million gallons per day shall include a statement of the operating procedure or equipment to be used by the applicant to achieve the most efficient method of application of water and to avoid waste.
(e) Reports, programs and contingency plans required under this section shall be submitted by the applicant as part of the permit application to the state agency having jurisdiction over the project, or directly to the Commission in those cases where the project is not subject to the jurisdiction of a state agency. State agencies having jurisdiction over a project that is subject to the provisions of this section shall determine the adequacy and completeness of the applicant’s compliance with these requirements and shall advise the Commission of their findings and conclusions.
§ 401.37 Sequence of approval.
A project will be considered by the Commission under Section 3.8 of the Compact either before or after any other state or federal review, in accordance with the provisions of the Administrative Agreement applicable to such project.
§ 401.38 Form of referral by State or Federal agency.
Upon receipt of an application by any State or Federal agency for any project reviewable by the Commission under this part, if the project has not prior thereto been reviewed and approved by the Commission, such agency shall refer the project for review under section 3.8 of the Compact in such form and manner as shall be provided by Administrative Agreement.
(a) The Commission will rely on the appropriate agency in each state to review and regulate the potability of all public water supplies. Applications before the Commission should address the impact of the withdrawal, use and disposal of water on the water resources of the Basin.
(b) The Commission will rely on signatory party reviews as much as possible and generally the Commission will not review the performance standards of individual components of treatment processes but will require compliance with all policies in the Comprehensive Plan including all applicable Water Quality Standards.
§ 401.39 Form of submission of projects.
(a) Submission constituting application. Where a project is subject to review under section 3.8 of the Compact, the submission shall be in accordance with such form of application as the Executive Director may prescribe and with such supporting documentation as the Executive Director may reasonably require for the administration of the provisions of the Compact. An application shall be deemed complete and the Commission’s review of the application may commence upon submission of the completed form in accordance with paragraph (b) of this section, and payment of the applicable fee as set forth in § 401.43 together with all balances due the Commission, if any, by the applicant or any member of its corporate structure, for unpaid fees, penalties, or interest.
(b) Submission of applications. Application forms and accompanying submissions shall be filed in accordance with the filing instructions included on the application form.
(c) Availability of forms. Any person may obtain a copy of any form prescribed for use in paragraph (a) of this section on the Commission’s website, https://www.drbc.gov.
§ 401.40 Informal conferences and emergencies.
(a) Whenever the Executive Director shall deem necessary, or upon request of the applicant, an informal conference may be scheduled to explain, supplement or review an application.
(b) In the event of an emergency requiring immediate action to protect the public interest or to avoid substantial and irreparable injury to any private person or property, and the circumstances do not permit a review, hearing and determination in the regular course of the regulations in this part, the Executive Director with the approval of the chairman of the Commission may issue an emergency certificate authorizing an applicant to take such action as the Executive Director may deem necessary and proper in the circumstances, pending review, hearing and determination by the Commission as otherwise required in this part.
§ 401.41 Limitation of approval; dormant applications.
(a) Extension (no material change)—(1) Term of approval; extension request. For any Commission approval not assigned an expiration date, the Commission’s approval shall expire five years from the approval date unless prior thereto the Commission extends the approval for an additional period of up to five years, based upon a written request from the project sponsor accompanied by supporting documentation demonstrating that the following criteria have been met:
(i) No material changes to the project as approved are proposed;
(ii) The condition of the project site has not changed in a manner important to determining whether the project would substantially impair or conflict with the Commission’s Comprehensive Plan;
(iii) The Commission’s Comprehensive Plan has not changed in a manner important to determining whether the project would substantially impair or conflict with the Comprehensive Plan; and
(iv) The project sponsor is diligently pursuing the project as shown by 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 project sponsor is not required by this paragraph (a)(1)(iv) to conduct activities that it is not legally authorized to conduct or that it demonstrates would be unreasonable for it to conduct before obtaining all necessary final government approvals.
(2) Denial of extension request. Otherwise, the extension request shall be denied, and the project sponsor may apply for renewal of its approval under paragraph (b) of this section by a date to be established by the Commission. If the Commission denies the request for an extension pursuant to this section, the docket approval shall not be administratively continued automatically pursuant to paragraph (a)(5) of this section. The Commission may, however, in its discretion, administratively extend the docket approval in whole or in part for a period ending on or before the date on which the Commission renders a final decision on the sponsor’s re-application under paragraph (b) of this section.
(3) Public notice. The Commission will publish notice of receipt of a request for extension under this paragraph (a) and will provide notice at least ten days prior to the date of a business meeting at which the Commissioners may act on such request.
(4) Public comment. An opportunity for written comment of at least ten days’ length will be provided on a request for extension. The project sponsor will be afforded an opportunity to respond in writing to the comments received. A public hearing will be provided if three or more Commission members ask the Executive Director in writing to schedule one or vote during a public meeting of the Commission to provide one.
(5) Administrative continuance. A docket that is the subject of a request for extension under paragraph (a) of this section filed at least 90 days before the docket’s expiration shall be administratively continued pending the Commission’s final action on the request in the event that such action occurs after the otherwise effective date of termination under this section.
(6) Extensions no longer needed. If the activities authorized by a docket are limited to construction activities, an extension is no longer required once construction is complete; however, the expiration of the docket, including any approved extension, does not eliminate ongoing docket obligations expressly identified as such in the docket approval.
(b) Re-application (material change). If the Commission determines that the project sponsor has failed to demonstrate that no material changes to the project as approved are proposed and that the other criteria listed in paragraph (a)(1) of this section are satisfied, the project sponsor must apply for renewal and any necessary modification of its approval in accordance with the customary application procedure for any docket renewal or approval.
(c) Automatic termination of application. Any application that remains dormant (no proof of active pursuit of approvals) for a period of three years from date of receipt, shall be automatically terminated without further action of the Commission. Any renewed activity following that date will require submission of a new application.
§ 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 § 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:
(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 this part. 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 materially change the 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 §§ 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.
§ 401.43 Regulatory program fees.
(a) Purpose. The purpose of this section is to provide an adequate, stable and reliable stream of revenue to cover the cost of the Commission’s regulatory program activities, an important means by which the Commission coordinates management of the shared water resources of the Basin. Activities to be covered by the fees include the review of applications for projects that are subject to review under the Delaware River Basin Compact and implementing regulations; and ongoing activities associated with such projects, including but not limited to, effluent and ambient monitoring, data analysis, hydrodynamic and water quality modeling, and coordination with state and federal agencies.
(b) Types of fees. The following types of fees are established by this section:
(1) Application fee. Except as set forth in paragraph (b)(1)(iii) of this section, the application fee shall apply to:
(i) Project requiring a DRBC-issued docket or permit. Any project that, in accordance with the Delaware River Basin Compact and DRBC regulations, requires a Commission-issued docket or permit, whether it be a new or existing project for which the Commission has not yet issued an approval or a project for which the renewal of a previous Commission approval is required.
(ii) Project requiring inclusion in the comprehensive plan. Any project that in accordance with section 11 or section 13.1 of the Delaware River Basin Compact and DRBC regulations must be added to the Comprehensive Plan (also, “Plan”). In addition to any new project required to be included in the Plan, such projects include existing projects that in accordance with section 13.1 of the Compact are required to be included in the Plan and which were not previously added to the Plan. Any existing project that is materially changed from the project as described in the Plan shall be deemed to be a new and different project for purposes of this section.
(iii) Exemptions. The application fee shall not apply to:
(A) Any project for which the Signatory Party Agency serves as lead under the One Permit Program rule (§ 401.42), unless such project must be added by the Commission to the Comprehensive Plan.
(B) Any project for which an agency, authority or commission of a signatory to the Compact is the primary sponsor. Projects sponsored by political subdivisions of the signatory states shall not be included in this exemption. For purposes of this section “political subdivisions” shall include without limitation municipalities, municipal utility authorities, municipal development corporations, and all other entities not directly under the budgetary and administrative control of the Commission’s members.
(2) Annual monitoring and coordination fee. (i) Except as provided in paragraph (b)(2)(ii) of this section, an annual monitoring and coordination fee shall apply to each active water allocation or wastewater discharge approval issued pursuant to the Compact and implementing regulations in this part, regardless of whether the approval was issued by the Commission in the form of a docket, permit or other instrument, or by a Signatory Party Agency under the One Permit Program rule (§ 401.42).
(ii) For any withdrawal or diversion covered in part by a certificate of entitlement issued pursuant to §§ 420.31 and 420.32 of the water supply charges regulations (18 CFR part 420), the annual monitoring and coordination fee shall be based on the allocated amount, if any, in excess of the quantity specified in the entitlement.
(3) Alternative review fee. In instances where the Commission’s activities and related costs associated with the review of an existing or proposed project are expected to involve extraordinary time and expense, an alternative review fee equal to the Commission’s actual costs may be imposed. The Executive Director shall inform the project sponsor in writing when the alternative review fee is to be applied and may require advance payment in the amount of the Commission’s projected costs. Instances in which the alternative review fee may apply include, but are not limited to, matters in which:
(i) DRBC staff perform a detailed pre-application review, including but not limited to the performance or review of modeling and/or analysis to identify target limits for wastewater discharges.
(ii) DRBC staff perform or review complex modeling in connection with the design of a wastewater discharge diffuser system.
(iii) DRBC manages a public process for which the degree of public involvement results in extraordinary effort and expense, including but not limited to, costs associated with multiple stakeholder meetings, special public hearings, and/or voluminous public comment.
(iv) DRBC conducts or is required to engage third parties to conduct additional analyses or evaluations of a project in response to a court order.
(4) Additional fees—(i) Emergency approval. A request for an emergency certificate under § 401.40 to waive or amend a docket condition shall be subject to a minimum fee in accordance with paragraph (e) of this section. An alternative review fee also may be charged in accordance with paragraph (b)(3) of this section.
(ii) Late filed renewal application. Any renewal application submitted fewer than 180 calendar days in advance of the expiration date or after such other date specified in the docket or permit or letter of the Executive Director for filing a renewal application shall be subject to a late filed renewal application charge in excess of the otherwise applicable fee.
(iii) Modification of a DRBC approval. Following Commission action on a project, any material change to the project as approved shall require an additional application and accompanying fee. Such fee shall be calculated in accordance with paragraph (e) of this section and may be subject to an alternative review fee in accordance with paragraph (b)(3) of this section.
(iv) Name change or change of ownership. Each project with a docket or permit issued by the DRBC will be charged an administrative fee as set forth in paragraph (e) of this section if it undergoes a change in name or a “change in ownership” as that term is defined at § 420.31(e)(2) of this subchapter.
(v) Change of ownership. Each project that undergoes a “change in ownership” as that term is defined at 18 CFR 420.31(e)(2) will be charged an administrative fee as set forth in paragraph (e) of this section.
(c) Indexed adjustment. On July 1 of every year, beginning July 1, 2017, all fees established by this section will increase commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia, published by the U.S. Bureau of Labor Statistics during that year.
(d) Late payment charge. When any fee established by this section remains unpaid 30 calendar days after the payment due date provided on the Commission’s invoice, an incremental charge equal to 2% of the amount owed shall be automatically assessed. Such charge shall be assessed every 30 days thereafter until the total amount owed, including any late payment charges has been paid in full.
(e) Fee schedules. The fees described in this section shall be as follows:
Table 1 to § 401.43—Docket Application Filing Fee
| Project type | Docket application fee | Fee maximum |
|---|---|---|
| Water Allocation | $511 per million gallons/month of allocation, 1 not to exceed $19,171. 1 Fee is doubled for any portion to be exported from the basin | Greater of: $19,171 1 or Alternative Review Fee. |
| Wastewater Discharge | Private projects: $1,278; 1 Public projects: $639 1 | Alternative Review Fee. |
| Other | 0.4% of project cost up to $10,000,000 plus 0.12% of project cost above $10,000,000 (if applicable), not to exceed $95,854 1 | Greater of: $95,854 1 or Alternative Review Fee. |
1 Subject to annual adjustment in accordance with paragraph (c) of this section.
Table 2 to § 401.43—Annual Monitoring and Coordination Fee
| Annual fee | Allocation | |
|---|---|---|
| Water Allocation | 1 $383 | |
1 575 | 5.00 to 49.99 mgm. | |
1 831 | 50.00 to 499.99 mgm. | |
1 1,054 | 500.00 to 9,999.99 mgm. | |
1 1,278 | > or = to 10,000 mgm. | |
| Annual fee | Discharge design capacity | |
| Wastewater Discharge | 1 $383 | |
1 780 | 0.05 to 1 mgd. | |
1 1,048 | 1 to 10 mgd. | |
1 1,278 | >10 mgd. |
1 Subject to annual adjustment in accordance with paragraph (c) of this section.
Table 3 to § 401.43—Additional Fees
| Proposed action | Fee | Fee maximum |
|---|---|---|
| Emergency Approval Under 18 CFR 401.40 | $5,000 | Alternative Review Fee. |
| Late Filed Renewal Surcharge | $2,000 | |
| Modification of a DRBC Approval | At Executive Director’s discretion, Docket Application Fee for the appropriate project type | Alternative Review Fee. |
| Name Change or Change of Ownership | $1,917
1 |
1 Subject to annual adjustment in accordance with paragraph (c) of this section.
Subpart D [Reserved]
Subpart E—Appeals or Objections to Decisions of the Executive Director in Water Qualtity Cases
§ 401.71 Scope.
This subpart shall apply to the review, hearing and decision of objections and issues arising as a result of administrative actions and decisions taken or rendered by the Executive Director under the Compact and the regulations in this chapter. Any hearings shall be conducted pursuant to the provisions of subpart F of this part.
§ 401.72 Notice and request for hearing.
The Executive Director shall serve notice of an action or decision by him under the regulations in this chapter by personal service or certified mail, return receipt requested. The affected discharger shall be entitled (and the notice of action or decision shall so state) to show cause at a Commission hearing why such action or decision should not take effect. A request for such a hearing shall be filed with the Secretary of the Commission not more than 30 days after service of the Executive Director’s determination. Failure to file such a request within the time limit shall be deemed to be an acceptance of the Executive Director’s determination and a waiver of any further hearing.
§ 401.73 Form of request.
(a) A request for a hearing may be informal but shall indicate the name of the individual and the address to which an acknowledgment may be directed. It may be stated in such detail as the objector may elect. The request shall be deemed filed only upon receipt by the Commission.
(b) Whenever the Executive Director determines that the request for a hearing is insufficient to identify the nature and scope of the objection, or that one or more issues may be resolved, reduced or identified by such action, he may require the objector to prepare and submit to the Commission, within such reasonable time (not less than 30 days) as he may specify, a technical report of the facts relating to the objection prior to the scheduling of the hearing. The report shall be required by notice in writing served upon the objector by certified mail, return receipt requested, addressed to the person or entity filing the request for hearing at the place indicated in the request.
§ 401.74 Form and contents of report.
(a) Generally. A request for a report under this subpart may require such information and the answers to such questions as may be reasonably pertinent to the subject of the action or determination under consideration.
(b) Waste loading. In cases involving objections to an allocation of the assimilative capacity of a stream, wasteload allocation for a point source, or load allocation for a new point source, the report shall be signed and verified by a technically qualified person having personal knowledge of the facts stated therein, and shall include such of the following items as the Executive Director may require:
(1) A specification with particularity of the ground or grounds for the objection; and failure to specify a ground for objection prior to the hearing shall foreclose the objector from thereafter asserting such a ground at the hearing;
(2) A description of industrial processing and waste treatment operational characteristics and outfall configuration in such detail as to permit an evaluation of the character, kind and quantity of the discharges, both treated and untreated, including the physical, chemical and biological properties of any liquid, gaseous, solid, radioactive, or other substance composing the discharge in whole or in part;
(3) The thermal characteristics of the discharges and the level of heat in flow;
(4) Information in sufficient detail to permit evaluation in depth of any in-plant control or recovery process for which credit is claimed;
(5) The chemical and toxicological characteristics including the processes and/or indirect discharges which may be the source of the chemicals or toxicity;
(6) An analysis of all the parameters that may have an effect on the strength of the waste or impinge upon the water quality criteria set forth in the regulations in this chapter, including a determination of the rate of biochemical oxygen demand and the projection of a first-stage carbonaceous oxygen demand;
(7) Measurements of the waste as closely as possible to the processes where the wastes are produced, with the sample composited either continually or at frequent intervals (one-half hour or, where permitted by the Executive Director, one hour periods), so as to represent adequately the strength and volume of waste that is discharged; and
(8) Such other and additional specific technical data as the Executive Director may reasonably consider necessary and useful for the proper determination of a wasteload allocation.
§ 401.75 Protection of trade secrets; Confidential information.
No person shall be required in such report to divulge trade secrets or secret processes. All information disclosed to any Commissioner, agent or employee of the Commission in any report required by this part shall be confidential for the purposes of Section 1905 of Title 18 of the United States Code which provides:
Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation or association; or permits any income return or copy thereof to be seen or examined by any persons except as provided by law; shall be fined not more than $1,000 or imprisoned not more than one year, or both; and shall be removed from office or employment. June 25, 1948, C.645, 62 Stat. 791.
§ 401.76 Failure to furnish report.
The Executive Director may, upon five days’ notice to the objector dismiss the request for a hearing as to any objector who fails to file a complete report within such time as shall be prescribed in the Director’s notice.
§ 401.77 Informal conference.
Whenever the Executive Director deems it appropriate, he may cause an informal conference to be scheduled between an objector and such member of the Commission staff as he may designate. The purpose of such a conference shall be to resolve or narrow the ground or grounds of the objections.
§ 401.78 Consolidation of hearings.
Following such informal conferences as may be held, to the extent that the same or similar grounds for objections are raised by one or more objectors, the Executive Director may in his discretion and with the consent of the objectors, cause a consolidated hearing to be scheduled at which two or more objectors asserting that ground may be heard.
Subpart F—Administrative and Other Hearings
§ 401.81 Hearings generally.
(a) Scope of subpart. This subpart shall apply to contested cases required to be held under subparts C and E of this part, to the conduct of other administrative hearings involving contested cases and to proceedings which Commission regulation or the Commission directs be conducted pursuant to this subpart.
(b) Definition of contested case. “Contested case” means a proceeding in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are involved. Such a proceeding may involve personnel matters, project applications and docket decisions but shall not extend to the review of any proposed or adopted rule or regulation of the Commission.
(c) Requests for hearings. Any person seeking a hearing to review the action or decision of the Commission or the Executive Director may request a hearing pursuant to the provisions of this subpart provided such a request is received by the Commission within thirty (30) days of the action or decision which is the subject of the requested hearing. Requests shall be submitted in writing to the Secretary of the Commission and shall identify the specific action or decision for which a hearing is requested, the date of the action or decision, the interest of the person requesting the hearing in the subject matter of the proposed hearing and a summary statement setting forth the basis for objecting to or seeking review of the action or decision. Any request filed more than thirty days after an action or decision will be deemed untimely and such request for a hearing shall be considered denied unless the Commission by unanimous vote otherwise directs. Receipt of requests for hearings, pursuant to this subpart, whether timely filed or not, shall be submitted by the Secretary to the Commissioners for their information.
(d) Optional joint hearings. Whenever designated by a department, agency or instrumentality of a signatory party, and within any limitations prescribed by the designation, a Hearing Officer designated pursuant to this subpart may also serve as a Hearing Officer, examiner or agent pursuant to such additional designation and may conduct joint hearings for the Commission and for such other department, agency or instrumentality. Pursuant to the additional designation, a Hearing Officer shall cause to be filed with the department, agency or instrumentality making the designation, a certified copy of the transcript of the evidence taken before him and, if requested, of his findings and recommendations. Neither the Hearing Officer nor the Delaware River Basin Commission shall have or exercise any power or duty as a result of such additional designation to decide the merits of any matter arising under the separate laws of a signatory party (other than the Delaware River Basin Compact).
(e) Schedule. The Executive Director shall cause the schedule for each hearing to be listed in advance upon a “hearing docket” which shall be posted in public view at the office of the Commission.
(f) Notice of hearing. Notice of any hearing to be conducted pursuant to this subpart shall comply with the provisions of Section 14.4(b) of the Compact relating to public notice unless otherwise directed by the Commission.
§ 401.82 Authorization to conduct hearings.
(a) Written requests for hearings. Upon receipt of a written request for a hearing pursuant to this subpart, the Executive Director shall review the record available with regard to the action or decision for which a hearing is requested. Thereafter, the Executive Director shall present the request for a hearing to the Commission for its consideration. The Commission shall grant a request for a hearing pursuant to this subpart if it determines that an adequate record with regard to the action or decision is not available, the contested case involves a determination by the Executive Director or staff which requires further action by the Commission or that the Commission has found that an administrative hearing is necessary or desirable. If the Commission denies any request for a hearing in a contested case, the party seeking such a hearing shall be limited to such remedies as may be provided by the Compact or other applicable law or court rule.
(b) Commission directed hearings. This subpart shall be applicable to any proceeding which Commission regulation or the Commission directs be conducted in accordance with the provisions, of this subpart.
§ 401.83 Hearing Officer.
(a) Generally. Hearings shall be conducted by one or more members of the Commission, by the Executive Director, or by such other Hearing Officer as the Chairman may designate, except as provided in paragraph (b) of this section.
(b) Wasteload allocation cases. In cases involving the allocation of the assimilative capacity of a stream:
(1) The Executive Director shall appoint a hearing board of at least two persons. One of them shall be nominated by the water pollution control agency of the state in which the discharge originates, and he shall be chairman. The board shall have and exercise the powers and duties of a Hearing Officer;
(2) A quorum of the board for purposes of the hearing shall consist of two members; and
(3) Questions of practice or procedure during the hearing shall be determined by the Chairman.
§ 401.84 Hearing procedure.
(a) Participation in the hearing. In any hearing, the person requesting the hearing shall be deemed an interested party and shall be entitled to participate fully in the hearing procedure. In addition, any person whose legal rights may be affected by the decision rendered in a contested case shall be deemed an interested party. Interested parties shall have the right to be represented by counsel, to present evidence and to examine and cross-examine witnesses. In addition to interested parties, any persons having information concerning a contested case or desiring to present comments concerning the subject matter of the Hearing for inclusion in the record may submit a written statement to the Commission. Any interested party may request the right to examine or cross-examine any person who submits a written statement. In the absence of a request for examination of such person, all written statements submitted shall be included within the record and such statements may be relied upon to the extent determined by the Hearing Officer or the Commission.
(b) Powers of the Hearing Officer. The Hearing Officer shall:
(1) Rule upon offers of proof and the admissibility of evidence, regulate the course of the hearings, hold conferences for the settlement or simplification of procedures or issues, and shall schedule submission of documents, briefs and the time for the hearing.
(2) Cause each witness to be sworn or to make affirmation.
(3) Limit the number of times any witness may testify, limit repetitious examination or cross-examination of witnesses or the extent to which corroborative or cumulative testimony shall be accepted.
(4) Exclude irrelevant, immaterial or unduly repetitious evidence, but the interested parties shall not be bound by technical rules of evidence and all relevant evidence of reasonably probative value may be received.
(5) Require briefs and oral arguments to the extent determined necessary which shall be included as part of the record unless otherwise ordered by the Hearing Officer.
§ 401.85 Staff and other expert testimony.
(a) Presentation on behalf of the Commission. The Executive Director shall arrange for the presentation of testimony by the Commission’s technical staff and other experts, as he may deem necessary or desirable, to incorporate in the record or support the administrative action, determination or decision which is the subject of the hearing.
(b) Expert witnesses. An interested party may submit in writing to the Hearing Officer the report and proposed testimony of an expert witness. No expert report or proposed testimony, however, shall be included in the record if the expert is not available for examination unless the report and proposed testimony shall have been provided to the Commission and all interested parties prior to the hearing and the Commission and interested parties have waived the right of cross-examination.
(c) The Executive Director may designate for inclusion in the record those records of the Commission which the Executive Director deems relevant to a decision in a contested case or to provide an understanding of applicable Commission policies, regulations or other requirements relating to the issues in the contested case. The designation of such Commission documents shall be provided to all interested parties prior to the hearing.
§ 401.86 Record of proceedings.
A record of the proceedings and evidence at each hearing shall be made by a qualified stenographer designated by the Executive Director. Where demanded by the applicant, objector, or any other person who is a party to these proceedings, or where deemed necessary by the Hearing Officer, the testimony shall be transcribed. In those instances where a transcript of proceedings is made, two copies shall be delivered to the Commission. The applicant, objector, or other persons who desire copies shall obtain them from the stenographer at such price as may be agreed upon by the stenographer and the person desiring the transcript.
§ 401.87 Assessment of costs; Appeals.
(a) Whenever a hearing is conducted under this subpart, the costs thereof, as defined in this subpart, shall be assessed by the Hearing Officer to the party requesting the hearing unless apportioned between the interested parties where cost sharing is deemed fair and equitable by the Hearing Officer. For the purposes of this section costs include all incremental costs incurred by the Commission, including, but not limited to, hearing examiner and expert consultants reasonably necessary in the matter, stenographic record, rental of a hearing room and other related expenses.
(b) Upon scheduling of a matter for hearing, the Secretary shall furnish to the applicant and/or interested parties a reasonable estimate of the costs to be incurred under this section. The applicant and/or interested parties may be required to furnish security for such costs either by cash deposit or by a surety bond of a corporate surety authorized to do business in a signatory state.
(c) An appeal of the assessment of costs may be submitted in writing to the Commission within ten (10) days of the assessment. A copy of the appeal shall be filed with the Secretary and served on all interested parties. The filing of said appeal shall not stay the Hearing.
§ 401.88 Findings, report and Commission review.
(a) The Hearing Officer shall prepare a report of his findings and recommendations. In the case of an objection to a waste load allocation, the Hearing Officer shall make specific findings of a recommended allocation which may increase, reduce or confirm the Executive Director’s determination. The report shall be served by personal service or certified mail (return receipt requested) upon each party to the hearing or its counsel unless all parties have waived service of the report. The applicant and any objector may file objections to the report within 20 days after the service upon him of a copy of the report. A brief shall be filed together with any objections. The report of the Hearing Officer together with objections and briefs shall be promptly submitted to the Commission. The Commission may require or permit oral argument upon such submission prior to its decision.
(b) The Executive Director, in addition to any submission to the Hearing Officer, may also submit to the Commission staff comments upon, or a response to, the Hearing Officer’s findings and report and, where appropriate, a draft docket or other recommended Commission action. Interested parties shall be served with a copy of such submission and may have not less than ten (10) days to respond before action by the Commission.
§ 401.89 Action by the Commission.
(a) The Commission will act upon the findings and recommendations of the Hearing Officer pursuant to law.
(b) Commission Counsel shall assist the Commission with its review of the hearing record and the preparation of a Commission decision to the extent directed to do so by the Chairman.
(c) The determination of the Commission will be in writing and shall be filed together with any transcript of the hearing, report of the Hearing Officer, objections thereto, and all plans, maps, exhibits and other papers, records or documents relating to the hearing. All such records, papers and documents may be examined by any person at the office of the Commission, and shall not be removed therefrom except temporarily upon the written order of the Secretary after the filing of a receipt therefor in form prescribed by the Secretary. Copies of any such records and papers may be made in the office of the Commission by any person, subject to such reasonable safeguards for the protection of the records as the Executive Director may require.
§ 401.90 Appeals from final Commission action; Time for appeals.
Any party participating in a hearing conducted pursuant to the provisions of this subpart may appeal any final Commission action. To be timely, such an appeal must be filed with an appropriate federal court, as provided in Article 15.1(p) of the Commission’s Compact, within forty-five (45) days of final Commission action.
Subpart G—Penalties and Settlements in Lieu of Penalties
§ 401.91 Scope of subpart.
This subpart shall be applicable where the Commission shall have information indicating that a person has violated or attempted to violate any provision of the Commission’s Compact or any of its rules, regulations or orders (hereafter referred to as possible violator). For the purposes of this subpart, person shall include person, partnership, corporation, business association, governmental agency or authority.
§ 401.92 Notice to possible violators.
Upon direction of the Commission the Executive Director shall, and in all other instances, the Executive Director may require a possible violator to show cause before the Commission why a penalty should not be assessed in accordance with the provisions of these rules and section 14.17 of the Compact. The notice to the possible violator shall:
(a) Set forth the date on which the possible violator shall respond; and
(b) Set forth any information to be submitted or produced by the possible violator.
§ 401.93 The record for decision-making.
(a) Written submission. In addition to the information required by the Commission, any possible violator shall be entitled to submit in writing any other information that it desires to make available to the Commission before it shall act. The Executive Director may require documents to be certified or otherwise authenticated and statements to be verified. The Commission may also receive written submissions from any other persons as to whether a violation has occurred and the adverse consequences resulting from a violation of the Commission’s Compact or its rules, regulations and orders.
(b) Presentation to the Commission. At the date set in the Notice, the possible violator shall have the opportunity to supplement its written presentation before the Commission by any oral statement it wishes to present and shall be prepared to respond to any questions from the Commission or its staff or to the statements submitted by persons affected by the possible violation.
§ 401.94 Adjudicatory hearings.
(a) An adjudicatory hearing, which may be in lieu of or in addition to proceedings pursuant to § 401.93 at which testimony may be presented and documents received shall not be scheduled unless:
(1) The Executive Director determines that a hearing is required to have an adequate record for the Commission; or
(2) The Commission directs that such a hearing be held.
(b) If an adjudicatory hearing is scheduled, the possible violator shall be given at least 14 days written notice of the hearing date unless waived by consent. Notice of such a hearing may be given to the general public and the press in the manner provided in section 14.4(b) of the Compact but may be waived by the Executive Director.
(c) Except to the extent inconsistent with the provisions of this subpart adjudicatory hearings shall be conducted in accordance with the provisions of §§ 491.83 through 401.88 (including § 401.86 et seq.).
§ 401.95 Assessment of a penalty.
The Executive Director may recommend to the Commission the amount of the penalty to be imposed. Such a recommendation shall be in writing and shall set forth the basis for the penalty amount proposed. Based upon the record submitted to the Commission, the Commission shall decide whether a violation has occurred that justifies the imposition of a penalty pursuant to § 14.17 of the Compact. If it is found that such a violation has occurred, the Commission shall determine the amount of the penalty to be paid.
§ 401.96 Factors to be applied in fixing penalty amount.
(a) Consideration shall be given to the following factors in deciding the amount of any penalty or any settlement in lieu of penalty:
(1) Previous violation, if any, of the Commission’s Compact and regulations;
(2) Whether the violation was unintentional or willful and deliberate;
(3) Whether the violation caused adverse environmental consequences and the extent of any harm;
(4) The costs incurred by the Commission or any signatory party relating to the failure to comply with the Commission’s Compact and regulations;
(5) The extent to which the violator has cooperated with the Commission in correcting the violation and remediating any adverse consequences or harm that resulted therefrom; and
(6) Whether the failure to comply with the Commission’s Compact and regulations was economically beneficial to the violator.
(b) The Commission retains the right to waive any penalty or reduce the amount of the penalty should it determine that, after consideration of the factors in paragraph (a) of this section, extenuating circumstances justify such action.
§ 401.97 Enforcement of penalties.
Any penalty imposed by the Commission shall be paid within 30 days or such further time period as shall be fixed by the Commission. The Executive Director and Commission counsel are authorized to take such action as may be necessary to assure enforcement of this subpart. If a proceeding before a court becomes necessary, the action of the Commission in determining a penalty amount shall constitute the penalty amount recommended by the Commission to be fixed by the court pursuant to § 14.17 of the Compact.
§ 401.98 Settlement by agreement in lieu of penalty.
A possible violator may request settlement of a penalty proceeding by agreement. If the Executive Director determines that settlement by agreement in lieu of a penalty is in the best interest of the Commission, he may submit to the Commission a proposed settlement agreement in lieu of a penalty. No settlement will be considered by the Commission unless the possible violator has indicated to the Commission acceptance of the terms of the agreement and the intention to comply with all requirements of the settlement agreement including payment of any settlement amount within the time period provided. If the Commission determines not to approve a settlement agreement, the Commission may proceed with a penalty action in accordance with this subpart.
§ 401.99 Suspension or modification of penalty.
The Commission may postpone the imposition of a penalty or provide for reconsideration of the penalty amount imposed pending correction of the condition that gave rise to the violation or pending a satisfactory resolution of any adverse consequences that resulted from the violation.
Subpart H—Public Access to Records and Information
§ 401.101 Policy on disclosure of Commission records.
The Commission will make the fullest possible disclosure of records to the public, consistent with the rights of individuals to privacy, the property rights of persons in trade secrets and confidential commercial or financial information, and the need for the Commission to promote frank internal policy deliberations and to pursue its regulatory activities without disruption.
§ 401.102 Partial disclosure of records.
If a record contains both disclosable and nondisclosable information, the nondisclosable information will be deleted and the remaining record will be disclosed unless the two are so inextricably intertwined that it is not feasible to separate them or release of the disclosable information would compromise or impinge upon the nondisclosable portion of the record.
§ 401.103 Request for existing records.
(a) Any written request to the Commission for existing records not prepared for routine distribution to the public shall be deemed to be a request for records pursuant to the provisions of this part, whether or not the provisions of this part are mentioned in the request, and shall be governed by the provisions of this part.
(b) Records or documents prepared by the Commission for routine public distribution, e.g., pamphlets, speeches, public information and educational materials, shall be furnished free of charge upon request as long as the supply lasts. The provisions of this part shall not be applicable to such requests.
(c) All existing Commission records are subject to routine destruction according to standard record retention schedules.
§ 401.104 Preparation of new records.
The provisions of this part apply only to existing records that are reasonably described in a request filed with the Commission pursuant to the procedures herein established. The Commission shall not be required to prepare new records in order to respond to a request for information.
§ 401.105 Indexes of certain records.
(a) Indexes shall be maintained, and revised at least quarterly, for the following Commission records:
(1) Final opinions and orders made in the adjudication of cases.
(2) Statements of policy and interpretation adopted by the Commission and still in force and not published in the
(3) Administrative staff manuals and instructions to staff that affect members of the public.
(b) A copy of each such index is available at cost of duplication from the Records Access Officer.
§ 401.106 Records Access Officer.
The Executive Director shall designate a Commission employee as the Records Access Officer. The Records Access Officer shall be responsible for Commission compliance with the provisions of this part. All requests for agency records shall be sent to the Records Access Officer in a manner consistent with § 401.108(a).
§ 401.107 Permanent file of requests for Commission records.
The Commission shall maintain a permanent file of all requests for Commission records and all responses thereto, incuding a list of all records furnished in response to a request. This file is available for public review during working hours.
§ 401.108 Filing a request for records.
(a) All requests for Commission records shall be submitted to the Records Access Officer on such forms as the Executive Director may prescribe, which shall be available on the Commission’s website, https://www.drbc.gov, or by written request to the Commission, 25 Cosey Road, West Trenton, NJ 08628.
(b) A request for Commission records shall reasonably describe the records being sought, in a way that they can be identified and located. A request should include all pertinent details that will help identify the records sought. A person requesting disclosure of records shall be permitted an opportunity to review them without the necessity for copying them where the records involved contain only disclosable data and information.
(1) If the description is insufficient to locate the records requested, the Records Access Officer will so notify the person making the request and indicate the additional information needed to identify the records requested.
(2) Every reasonable effort shall be made by the staff to assist in the identification and location of the records sought.
(3) In any situation in which it is determined that a request for voluminous records would unduly burden and interfere with the operations of the Commission, the person making the request will be asked to be more specific and to narrow the request, and to agree on an orderly procedure for the production of the requested records.
(c) Upon receipt of a request for records, the Records Access Officer shall enter it in a public log (which entry may consist of a copy of the request). The log shall state the date and time received, the name and address of the person making the request, the nature of the records requested, the action taken on the request, the date of the determination letter sent pursuant to § 401.109(b), the date(s) any records are subsequently furnished, the number of staff-hours and grade levels of persons who spent time responding to the request, and the payment requested and received.
(d) A denial of a request for records, in whole or in part, shall be signed by the Records Access Officer. The name and title or position of each person who participated in the denial of a request for records shall be set forth in the letter denying the request. This requirement may be met by attaching a list of such individuals to the letter.
§ 401.109 Time limitations.
(a) All time limitations established pursuant to this section shall begin as of the time at which a request for records is logged in by the Records Access Officer pursuant to § 401.108(c). An oral request for records shall not begin any time requirement. A written request for records sent elsewhere within the Commission shall not begin any time requirement until it is redirected to the Records Access Officer and is logged in accordance with § 401.108(c). A request that is expected to involve fees in excess of $50.00 will not be deemed received until the requester is promptly notified and agrees to bear the cost or has so indicated on the initial request.
(b) Within 10 working days (excepting Saturdays, Sundays, and legal public holidays) after a request for records is logged by the Records Access Officer, the record shall be furnished or a letter shall be sent to the person making the request determining whether, or the extent to which, the Commission will comply with the request, and, if any records are denied, the reasons therefor.
(1) If all of the records requested have been located and a final determination has been made with respect to disclosure of all of the records requested, the letter shall so state.
(2) If all of the records have not been located or a final determination has not yet been made with respect to disclosure of all of the records requested, the letter shall state the extent to which the records involved shall be disclosed pursuant to the rules established in this part.
(3) In the following unusual circumstances, the time for sending this letter may be extended by the Executive Director for up to an additional ten (10) working days by written notice to the person making the request setting forth the reasons for such extension and the time within which a determination is expected to be dispatched:
(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the Commission’s Headquarters.
(ii) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request.
(iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the Commission having substantial subject-matter interest therein.
(c) If any record is denied, the letter shall state the right of the person requesting such records to appeal any adverse determination to the Executive Director of the Commission. Such an appeal shall be filed within 30 days from receipt of the Records Access Officer’s determination denying the requested information (where the entire request has been denied), or from the receipt of any information made available pursuant to the request (where the request has been denied in part). Within 20 working days (excepting Saturdays, Sundays, and legal public holidays) after receipt of any appeal, or any authorized extension, the Executive Director or the Executive Director’s designee shall make a determination and notify the appellant of such determination. If the appeal is decided in favor of the appellant the requested information shall be promptly supplied as provided in this part. If on appeal the denial of the request for records is upheld in whole or in part, the appellant shall be entitled to appeal to the Commission at its regular meeting. In the event that the Commission confirms the Executive Director’s denial the appellant shall be notified of the provisions for judicial review.
(d) If the request for records will result in a fee of more than $25, determination letter under paragraph (b) of this section shall specify or estimate the fee involved and may require prepayment, as well as payment of any amount not yet received as a result of any previous request, before the records are made available. If the fee is less than $25, prepayment shall not be required unless payment has not yet been received for records disclosed as a result of a previous request.
(e) Whenever possible, the determination letter required under paragraph (b) of this section, relating to a request for records that involves a fee of less than $25.00, shall be accompanied by the requested records. Where this is not possible, the records shall be forwarded as soon as possible thereafter. For requests for records involving a fee of more than $25.00, the records shall be forwarded as soon as possible after receipt of payment.
§ 401.110 Fees.
(a) Unless waived in accordance with the provisions of § 401.111, the following fees shall be imposed for production of any record pursuant to this part.
(1) Administrative fees. (i) Charges for administrative fees include staff time associated with:
(A) Processing requests for records;
(B) Locating and reviewing files;
(C) Monitoring file reviews;
(D) Generating computer records (electronic print-outs); and
(E) Preparing logs of records deemed non-public.
(ii) Administrative charges will be calculated as follows: Administrative charges will be billed to the requester per quarter hour following the first quarter hour. These charges will be billed at the current, hourly paygrade rate (pro-rated for quarter hour increments) of the personnel performing the service. Administrative charges will be in addition to any copying charges.
(iii) Appointment rescheduling/cancellation. Requesters that do not reschedule or cancel appointments to view files at least one full business day in advance of the appointment may be subject to the administrative charges incurred by the Commission in preparing the requested records. The Commission will prepare an itemized invoice of these charges and mail it to the requester for payment.
(2) Photocopying fees. The following are charges for photocopies of public records made by Commission personnel:
(i) Standard sized, black and white copies. The charge for copying standard sized, black and white public records shall be $0.15 per printed page (i.e., single-sided copies are $0.15 and double-sided copies are $0.30). This charge applies to copies on the following standard paper sizes:
(A) 8.5″ × 11″;
(B) 8.5″ × 14″;
(C) 11″ × 17″.
(ii) Color copies/printouts. The charge for color copies or color printouts shall be as follows:
(A) 8.5″ × 11″—$1.00 per page;
(B) 8.5″ × 14″—$1.50 per page;
(C) 11″ × 17″—$2.00 per page;
(D) The charge for all color copies larger than 11″ × 17″ (including, but not limited to: photographic imagery, GIS print-outs, and maps) shall be calculated at the rate of $2.50 per square foot.
(iii) Electronically generated records. Charges for copying records maintained in electronic format will be calculated by the material costs involved in generating the copies (including, but not limited to: magnetic tape, diskette, or compact disc costs) and administrative costs.
(iv) Other copying fees. The Commission, at its discretion, may arrange to have records copied by an outside contractor if the Commission does not have the resources or equipment to copy such records. In this instance, the requester will be liable for payment of these costs.
(3) Forwarding material to destination. Postage, insurance, and special fees will be charged on an actual cost basis.
(b) No charge shall be made for the time spent in resolving legal or policy issues or in examining records for the purpose of deleting nondisclosable portions thereof.
(c) Payment shall be made by check or money order payable to “Delaware River Basin Commission” and shall be sent to the Records Access Officer.
§ 401.111 Waiver of fees.
(a) No fee shall be charged for disclosure of records pursuant to this part where:
(1) The records are requested by a congressional committee or subcommittee or the General Accounting Office.
(2) The records are requested by an agency of a signatory party.
(3) The records are requested by a court of competent jurisdiction.
(4) The records are requested by a state or local government having jurisdiction thereof.
(b) No fee shall be charged if a record requested is not found or for any record that is totally exempt from disclosure.
§ 401.112 Exempt information.
The following materials and information covered by this part shall be exempt from disclosure; that is, information that is:
(a) Related solely to the internal personnel matters of the Commission;
(b) Specifically exempted from disclosure by statute;
(c) Trade secrets and commercial or financial information obtained from a person and privileged or confidential. (For purposes of this section a trade secret may consist of any formula, pattern, device, or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Commercial or financial information that is privileged or confidential means valuable data or information which is used in one’s business and is of a type customarily held in strict confidence or regarded as privileged and not disclosed to any member of the public by the person to whom it belongs.)
(d) Inter-agency or intra-agency memorandums or letters other than purely factual compilations, which would not be available by law to a party other than an agency in litigation with the Commission;
(e) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and
(f) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (1) interfere with enforcement proceedings, (2) deprive a person of a right to a fair trial or an impartial adjudication, (3) constitute an unwarranted invasion of personal privacy, (4) disclose the identity of a confidential source, (5) disclose investigative techniques and procedures, or (6) endanger the life or physical safety of law enforcement personnel.
§ 401.113 Segregable materials.
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this part, except as provided in § 401.102.
§ 401.114 Data and information previously disclosed to the public.
Any Commission record that is otherwise exempt from public disclosure pursuant to this part is available for public disclosure to the extent that it contains data or information that have previously been disclosed in a lawful manner to any member of the public, other than an employee or consultant or pursuant to other commercial arrangements with appropriate safeguards for secrecy.
§ 401.115 Discretionary disclosure by the Executive Director.
(a) The Executive Director may exercise discretion to disclose part or all of any Commission record that is otherwise exempt from disclosure pursuant to this part whenever the Executive Director determines that such disclosure is in the public interest, will promote the objectives of the Commission, and is consistent with the rights of individuals to privacy, the property rights of persons in trade secrets, and the need for the Commission to promote frank internal policy deliberations and to pursue its regulatory activities without disruption.
(b) Discretionary disclosure of a record pursuant to this section shall invoke the requirement that the record shall be disclosed to any person who requests it pursuant to § 401.108, but shall not set a precedent for discretionary disclosure of any similar or related record and shall not obligate the Executive Director to disclose any other record that is exempt from disclosure.
§ 401.116 Disclosure to consultants, advisory committees, State and local government officials, and other special government employees.
Data and information otherwise exempt from public disclosure may be disclosed to Commission consultants, advisory committees, state and local government officials, and other special government employees for use only in their work in cooperation with the Commission. Such persons are thereafter subject to the same restrictions with respect to the disclosure of such data and information as any other Commission employee.
§ 401.117 Disclosure to other Federal government departments and agencies.
Any Commission record otherwise exempt from public disclosure may be disclosed to other Federal Government departments and agencies, except that trade secrets may be disclosed only to a department or agency that has concurrent jurisdiction over the matter and separate legal authority to obtain the specific information involved. Any disclosure under this section shall be pursuant to an agreement that the record shall not be further disclosed by the other department or agency except with the written permission of the Commission.
§ 401.118 Disclosure in administrative or court proceedings.
Data and information otherwise exempt from public disclosure may be revealed in Commission administrative or court proceedings where the data or information are relevant. The Commission will request that the data or information be held in camera and that any other appropriate measures be taken to reduce disclosure to the minimum necessary under the circumstances.
§ 401.119 Disclosure to Congress.
All records of the Commission shall be disclosed to Congress upon an authorized request.
Subpart I—General Provisions
§ 401.121 Definitions.
For the purposes of this part, except as the context may otherwise require:
(a) All words and phrases which are defined by section 1.2 of the Compact shall have the same meaning herein.
(b) Words and phrases which are defined by part I of the Administrative Manual (section 1-3) shall have the same meaning for the purposes of this part 401.
(c) Application shall mean a request for action by the Commission in any written form, including without limitation thereto, a letter, referral by any agency of a signatory party, or an official form prescribed by the Commission; provided that whenever an official form of application has been duly required, an application shall not be deemed to be pending before the Commission until such time as such form, together with the information required thereby, has been completed and filed.
(d) Applicant shall mean any sponsor or other person who has submitted an application to the Commission.
(e) Material change shall mean a change to a project previously approved by the Commission that is important in determining whether the project would substantially impair or conflict with the Commission’s comprehensive plan.
(f) Sponsor shall mean any person authorized to initiate, construct or administer a project.
§ 401.122 Supplementary details.
Forms, procedures and supplementary information, to effectuate these regulations, may be provided or required by the Executive Director as to any hearing, project or class of projects.
§ 401.123 Waiver of rules.
The Commission may, for good cause shown, waive rules or require additional information in any case.
§ 401.124 Construction.
This part is promulgated pursuant to section 14.2 of the Compact and shall be construed and applied subject to all of the terms and conditions of the Compact and of the provisions of section 15.1 of Pub. L. 87-328, 75 Stat. 688.
PART 410—BASIN REGULATIONS; WATER CODE AND ADMINISTRATIVE MANUAL—PART III WATER QUALITY REGULATIONS
§ 410.1 Basin regulations—Water Code and Administrative Manual—Part III Water Quality Regulations.
(a) The Water Code of the Delaware River Basin is a codification of regulations of the Delaware River Basin Commission applicable to public and private water projects and programs within the Delaware River Basin. Article I of the water code sets forth general policies of the Commission. Article II concerns the conservation, development and utilization of Delaware River Basin water resources, including during periods of drought. Article III sets forth water quality standards and guidelines for the Delaware River Basin. Article IV contains rules relating to application of water quality standards within the Basin. The Commission’s Administrative Manual—Part III, Water Quality Regulations, applies to all public and private entities that discharge waste to waters of the Delaware River Basin.
(b) Article III of the water code consists of Article III of the water quality regulations. Article IV of the water code consists of portions of Article IV of the water quality regulations.
(c) Work, services, activities and facilities affecting the conservation, utilization, control, development or management of water resources within the Delaware River Basin are subject to regulations contained within the Delaware River Basin Water Code with Amendments through December 7, 2022 and the Administrative Manual—Part III Water Quality Regulations with Amendments through December 7, 2022. Both the Delaware River Basin Water Code and the Administrative Manual—Part III Water Quality Regulations are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain or inspect this material at the Delaware River Basin Commission (DRBC), 25 Cosey Road, West Trenton, New Jersey 08628-0360, 609-883-9500, www.drbc.gov. You may inspect this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected].
PART 415—BASIN REGULATIONS—FLOOD PLAIN REGULATIONS
Generally
§ 415.1 Short title.
This part shall be known and may be cited as the “Flood Plain Regulations.”
§ 415.2 Definitions.
For the purposes of this part, except as otherwise required by the context:
Project means the same word as defined by section 1.2(g) of the Delaware River Basin Compact.
Floodway means the channel of the watercourse and those portions of the adjoining flood plains which are reasonably required to carry and discharge the regulatory flood. For this purpose the limit of the floodway shall be established by allowing not more than a one-foot rise of the water surface elevation of the regulatory flood as a result of encroachment. Wherever practical, equal conveyance reduction from each side of the flood plain shall be used. (See Figure 1.)
Flood fringe means that portion of the flood hazard area outside the floodway.
Flood hazard area means the area inundated by the regulatory flood.
Flood plain means the area adjoining the channel of a stream which has been or hereafter may be covered by flood water.
Floodproofing means any combination of structural and nonstructural additions, changes, or adjustments to properties and structures which reduce or eliminate flood damage to lands, water and sanitary facilities, structures, and contents of buildings.
Flood protection elevation means one foot above the elevation of the flood that has a one percent chance of occurring in any one year. (The 100-year flood).
Major tributary means the mainstem of the following streams:
Brandywine Creek, Brodhead Creek, Big Bushkill Creek, Lackawaxen, Lehigh, Schuylkill, Neshaminy.
Brandywine Creek, Christina.
East Branch, Mongaup, Neversink, West Branch.
Assunpink, Musconetcong, Paulins Kill, Rancocas, Pequest.
Official flood plain map means a map showing the flood plain area of a community prepared pursuant to the National Flood Insurance Act, or a map recognized by the Executive Director as meeting equivalent hydraulic or engineering criteria.
Regulatory flood means the flood which has a one percent chance of occurring in any one year. (The 100-year flood.)
Structure means any assembly of material above or below the surface of land or water, including but not limited to, buildings, dams, fills, levees, bulkheads, dikes, jetties, embankments, causeways, culverts, roads, railroads and bridges.
§ 415.3 Purpose and findings.
(a) The Commission hereby finds and determines that the use of flood plains is affected with a public interest due to:
(1) The danger to life and property due to increased flood heights or velocities caused by encroachments.
(2) The danger that materials may be swept onto other lands or downstream to the injury of others.
(3) The requirements of a facility for a waterfront location.
(b) In order to protect the public interest, the following principles and goals have been determined:
(1) The overall goal is prudent land use within the physical and environmental constraints of the site.
(2) The principle of equal and uniform treatment shall apply to all flood plain users who are similarly situated.
(3) Flood plain use shall not result in nuisance to other properties.
(4) Flood plain use shall not threaten public safety, health and general welfare.
(5) Future land uses in private flood plains shall not result in public expense to protect the property and associated public services from flood damage.
(6) All future public and private flood plain users shall bear the full direct and indirect costs attributable to their use and actions.
(7) Restrictions on flood plain use, and flood hazard information shall be widely publicized.
(8) Land and water use regulations of responsible units of government shall not impair or conflict with the flood plain use standards duly adopted for the basin, except as provided for in § 415.42(a) of this part.
(9) Plans for land and water use adopted by responsible agencies shall not impair or conflict with these flood plain use standards.
(10) No action of any unit of government shall impair or conflict with these flood plain use standards.
Types of Projects and Jurisdiction
§ 415.20 Class I projects.
Projects described in paragraphs (a) and (b) of this section shall be subject to review by the Commission under standards provided by this section and in accordance with the provisions of §§ 415.30 through 415.33 of this part, as follows:
(a) All projects subject to review by the Commission under section 3.8 of the Compact and the regulations thereunder.
(b) State and local standards of flood plain regulation.
§ 415.21 Class II projects.
Class II projects, subject to review in accordance with §§ 415.40 through 415.43 of this part, include all projects other than Class I projects, in non-tidal areas of the basin, which involve either:
(a) A development of land, either residential or non-residential within a flood hazard area which:
(1) Includes one or more structures covering a total land area in excess of 50,000 square feet; or
(2) Contains in excess of 25 residential building lots or 25 dwelling units as part of an integrated development plan whether or not such development is included in a single application; or
(b) A development of land in the flood hazard area to mine, manufacture, process, store or dispose of materials which, if flooded, would pollute the waters of the basin or threaten damage to off-site areas, including, without limitation thereto, materials which are poisonous, radioactive, biologically undesirable or floatable.
Standards
§ 415.30 Regulations generally.
The uses of land within a flood hazard area shall be subject to regulation within one of the following categories:
(a) Prohibited uses;
(b) Permitted uses generally;
(c) Uses by special permit.
§ 415.31 Prohibited uses.
(a) Within the floodway, except as permitted by special permit, the following uses are prohibited:
(1) Erection of any structure for occupancy at any time by humans or animals.
(2) Placing, or depositing, or dumping any spoil, fill or solid waste.
(3) Stockpiling or disposal of pesticides, domestic or industrial waste, radioactive materials, petroleum products or hazardous material which, if flooded, would pollute the waters of the basin.
(4) The storage of equipment or of buoyant materials, except for purposes of public safety.
(b) Within the flood fringe, except as permitted by special permit, the following uses are prohibited:
(1) Stockpiling or disposal of pesticides, domestic or industrial waste, radioactive materials, petroleum products or hazardous material which, if flooded, would pollute the waters of the basin.
(2) Any use which will adversely affect the capacity of channels or floodways of any tributary to the main stream, drainage ditch, or any other drainage facility.
§ 415.32 Permitted uses generally.
(a) Within the floodway, the following uses are permitted to the extent that they do not require structures, fill or storage of materials or permanently installed equipment, and do not adversely affect the capacity of the floodway:
(1) Agricultural uses such as general farming, livestock, and dairy farming, horticulture, truck farming, sod farming, forestry, wild crop harvesting, and normal operating practices associated therewith.
(2) Industrial-commercial uses such as loading areas, parking areas and airport landing strips.
(3) Private and public recreational uses such as golf courses, driving ranges, archery ranges, picnic grounds, boat launching ramps, swimming areas, parks, wildlife and nature preserves, game farms, shooting preserves, target ranges, trap and skeet ranges, hunting and fishing areas, hiking and horseback riding trails.
(4) Uses such as lawns, gardens, parking areas and play areas.
(b) Within the flood fringe, the following uses are permitted:
(1) Any use permitted in the floodway.
(2) Residences and other structures constructed so that the first floor, including basement, is above the Flood Protection Elevation. When fill is used the finished fill elevation shall be no lower than the Flood Protection Elevation for the particular area and shall extend at least 15 feet beyond the limits of any structure or building erected thereon.
§ 415.33 Uses by special permit.
(a) Within the floodway the following uses by special permit may be authorized under the standards hereinafter provided:
(1) Uses or structures accessory to open space use.
(2) Circuses, carnivals and similar transient enterprises.
(3) Drive-in theaters, signs and billboards.
(4) Extraction of sand, gravel and other non-toxic materials.
(5) Marinas, boat liveries, docks, piers, wharves and water control structures.
(6) Fish hatcheries.
(7) Railroads, streets, bridges, utility transmission lines and pipelines.
(b) Within the flood fringe the following uses by special permit may be authorized under standards hereinafter provided:
(1) Non-residential uses generally. Structures other than residence shall ordinarily be elevated as herein provided but may in special circumstances be otherwise flood proofed to a point above the Flood Protection Elevation.
(2) Commercial uses. Commercial structures shall be elevated so that no first floor or basement floor is below the Flood Protection Elevation; or such structures may be flood proofed to the Flood Protection Elevation. Accessory land uses, such as yards, railroad tracks and parking lots may be at lower elevations. However, a permit for such facilities to be used by the general public shall not be granted in the absence of a flood warning system, if the area is inundated to a depth greater than two feet or subject to flood velocities greater than four feet per second upon the occurrence of the Regulatory Flood.
(3) Manufacturing and industrial uses. Manufacturing and industrial buildings, structures, and appurtenant works shall be elevated so that no first floor or basement floor is below the Flood Protection Elevation; or such structures may be flood proofed to the Flood Protection Elevation. Measures shall be taken to minimize flood water interference with normal plant operations especially for streams having protracted flood durations. Certain accessory land uses as yards and parking lots may have lesser protection subject to the flood warning requirements set out in 2 above.
(4) Utilities, railroad tracks, streets and bridges. Public utility facilities, roads, railroad tracks and bridges shall be designed to minimize increases in flood elevations and shall be compatible with local comprehensive flood plain development plans to the extent applicable. Protection to the Flood Protection Elevation shall be provided where failure or interruption of these public facilities would result in danger to the public health or safety, or where such facilities are essential to the orderly functioning of the area. Where failure or interruption of service would not endanger life or health, a lesser degree of protection may be provided for minor or auxiliary roads, railroads or utilities.
(5) Water supply and waste treatment. No new construction, addition or modification of a water supply or waste treatment facility shall be permitted unless the lowest operating floor of such facility is above the Flood Protection Elevation, or the facility is flood proofed according to plans approved by the Commission, nor unless emergency plans and procedures for action to be taken in the event of flooding are prepared. Plans shall be filed with the Delaware River Basin Commission and the concerned state or states. The emergency plans and procedures shall provide for measures to prevent introduction of any pollutant or toxic material into the flood water or the introduction of flood waters into potable supplies.
Administration
§ 415.40 Administrative agency.
(a) Class I projects as defined by § 415.20 of this part shall be subject to review and approval by the Commission.
(b) Class II projects as defined by § 415.21 shall be subject to review and approval by a duly empowered state or local agency; and if there be no such state or local agency at any time on and after January 1, 1978, and only during such time, the Commission may review any such project which has been identified by the Executive Director as having special flood hazards, and:
(1) Is located along the mainstem Delaware River or a major tributary thereof, or
(2) An agency of a signatory party requests such review.
§ 415.41 Special permits.
A special permit may be granted, or granted on stated conditions, provided:
(a) There is a clear balance in favor of the public interest in terms of the following environmental criteria:
(1) The importance of a facility to the community.
(2) The availability of alternative locations not subject to flooding for the proposed use.
(3) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
(4) The relationship of the proposed use to any applicable comprehensive plan or flood plain management program for the area.
(5) The safety of access to the property in times of flood for ordinary and emergency vehicles.
(6) The expected heights, velocity, duration, rate of rise and sediment transport of the flood water expected at the site.
(7) The degree to which the proposed activity would alter natural water flow or water temperature.
(8) The degree to which archaeological or historic sites and structures, endangered or rare species of animals or plants, high quality wildlife habitats, scarce vegetation types, and other irreplaceable land types would be degraded or destroyed.
(9) The degree to which the natural, scenic and aesthetic values at the proposed activity site could be retained.
(b) The project shall not:
(1) Endanger human life.
(2) Have high flood damage potential.
(3) Obstruct flood flows nor increase flood heights or velocities unduly whether acting alone or in combination with other uses.
(4) Degrade significantly the water carrying capacity of any delineated floodway or channel.
(5) Increase significantly the rate of local runoff, erosion, or sedimentation.
(6) Degrade significantly the quality of surface water or the quality or quantity of ground water.
(7) Be susceptible to flotation.
(8) Have service facilities installed below the elevation of the regulatory flood without being adequately flood proofed.
§ 415.42 Technical standards.
(a) Standards used by state and local governments shall conform in principle to Commission standards but may vary in detail provided that resulting flood plain use will not be less restrictive than would result from the application of Commission standards. The Commission will review proposed state and local flood plain regulations to determine their compliance with Commission standards.
(b) Because of the variety and diversity of presently recognized hydrologic procedures, no one procedure or method is prescribed for determining the peak flow in cubic feet per second for the 100-year storm (Q 100) on which profiles for the delineation of flood hazard areas are based. The following may be used:
(1) A uniform Technique for Determining Flood Flow Frequencies—Bulletin No. 15—Water Resources Council, December 1967.
(2) Basin-Wide Program for Flood Plain Delineation—Delaware River Basin Commission—Anderson-Nichols & Co., Inc., June 1973.
(3) Magnitude and Frequency of Floods in New Jersey with Effects of Urbanization—Special Report 38 U.S.G.S.—New Jersey Department of Environmental Protection, 1974.
(4) Guidelines for Determining Flood Flow Frequency—Bulletin No. 17—Water Resources Council, March 1976.
(c) Methods and procedures shall be uniform, so far as practicable, within sub-basins which have a major effect on the larger basins of which they are a part. To assist in achieving this objective the Commission staff will periodically provide to the various interested governmental agencies and others Q 100 data as developed by the Delaware River Basin Commission Hydrology Coordinating Committee for key locations in the Delaware River Basin. These will be based on a Log Pearson Type 3 analysis of data from the U.S.G.S. gaging stations using station skew, regional skew, or weighted skew, depending on the scope of data at each station.
§ 415.43 Mapped and unmapped delineations.
(a) Whenever an official flood plain map providing the pertinent information is available with respect to a given project, the map shall be used for the delineation of the flood hazard area, floodway, flood fringe and determination of flood protection elevation.
(b) Whenever an official flood plain map providing the required information is not available with respect to a given project, the administrative agency shall require the project landowner to submit details concerning the proposed uses as needed to determine the floodway and flood fringe limits at the proposed site, including: cross-sections of the stream channel and overbanks, stream profile, and factors involved in determining obstructions to flow. From the data submitted, soil surveys, historic flood maps, high water marks and other empirical data, the applicant, subject to verification by the administrative agency, shall calculate flood hazard areas, and establish the flood protection elevation for the particular site.
(c) Pending the preparation and completion of flood plain mapping, a “general flood plain” area shall be prescribed by the administrative agency to delineate for public guidance the areal limits of site locations which are required to be submitted for review under this regulation.
Enforcement
§ 415.50 General conditions.
On and after January 1, 1978, where:
(a) The flood hazard at the site is clear, present and significant, or the local government having jurisdiction has special flood hazard areas identified pursuant to the National Flood Insurance Act; and
(b) The site is not subject to an approved state or municipal regulatory system having the same or similar effect on the flood hazard as this regulation, the Commission may condition its approval on any local governmental project under section 3.8 of the Compact upon the adoption and enforcement of flood plain regulations, approved hereunder, by the state or local government having jurisdiction.
§ 415.51 Prior non-conforming structures.
A structure which was lawful before the adoption of this regulation but which is not in conformity with the provisions hereof, shall be subject to the following conditions (to be enforced by the appropriate authority as to Class I and Class II projects, respectively, under §§ 415.40 through 415.43 of this part):
(a) A non-conforming structure in the floodway may not be expanded, except that it may be modified, altered or repaired to incorporate flood proofing measures provided such measures do not raise the level of the 100-year flood.
(b) A non-conforming structure in the floodway which is destroyed or damaged by any means, including a flood, to the extent of 50 percent or more of its market value at that time may not be restored, repaired, reconstructed or improved except in conformity with the provisions of these regulations.
§ 415.52 Violations.
Any violation of this regulation shall be subject to penalties imposed by the Compact.
PART 420—BASIN REGULATIONS—WATER SUPPLY CHARGES
General
§ 420.1 Definitions.
For the purposes of this part 420, except as otherwise required by the context:
Person means any person, corporation, partnership, association, trust, or other entity, public or private.
Water user means any person who uses, takes, withdraws or diverts surface waters within the Delaware River Basin.
Executive Director means the Executive Director of the Delaware River Basin Commission.
Consumptive use means the water lost due to transpiration from vegetation in the building of plant tissue, incorporated into products during their manufacture, lost to the atmosphere from cooling devices, evaporated from water surfaces, exported from the Delaware River Basin, or any other water use for which the water withdrawn is not returned to the surface waters of the basin undiminished in quantity.
Water Supply Policy
§ 420.21 Policy.
The provisions of this part 420 implement Commission Resolution No. 71-4 (Comprehensive Plan) relating to water supply charges.
§ 420.22 Prohibition; sanctions.
Any person, firm, corporation or other entity, including a public corporation, body or agency, who shall use, withdraw or divert surface waters of the basin, shall pay such charges therefor as may be required by this resolution. Any violation of this resolution shall be subject to penalty as prescribed under Article 14.17 of the Compact. The Commission may also recover the value (according to the established water pricing schedules of the Commission) of any such use, withdrawal or diversion, and invoke the jurisdiction of the courts to enjoin any further use, withdrawal or diversion, unless all charges under this resolution are paid in full when due.
§ 420.23 Exempt uses under the Compact.
(a) Section 15.1(b) of the Delaware River Basin Compact provides that “no provision of section 3.7 of the Compact shall be deemed to authorize the Commission to impose any charge for water withdrawals or diversions from the basin if such withdrawals or diversions could lawfully have been made without charge on the effective date of the Compact; * * *” In compliance with this provision: There shall be no charge for water withdrawn or diverted in quantities not exceeding the legal entitlement of the user, determined as of October 27, 1961. Each water user may submit proof satisfactory to the Commission of the factors constituting legal entitlement, as defined in paragraph (b) thereof. In the absence of such proof of these conditions as of October 27, 1961, the quantity of water exempt from charge to each user will be the legal entitlement of the user determined as of March 31, 1971.
(b) For the purposes of paragraph (a) of this section:
(1) Legal entitlement means the quantity or volume of water expressed in million gallons per month determined by the lesser of the following conditions:
(i) A valid and subsisting permit, issued under the authority of one of the signatory parties, if such permit was required as of October 27, 1961, or thereafter;
(ii) Physical capability as required for such taking; or
(iii) The total allocable flow without augmentation by the Commission, using a seven-day, ten-year, low-flow criterion measured at the point of withdrawal or diversion.
(2) Physical capability means the capacity of pumps, water lines and appurtenances installed and operable, determined according to sound engineering principles. The physical capability specifically includes plant facilities actually using water, but excludes facilities which may have been installed in anticipation of future plant expansion not yet realized.
(c) Whenever adequate records of legal entitlement for agricultural irrigation purposes are not available to the Commission, such legal entitlement shall be measured by the maximum number of acres under irrigation by the water user at any time during the year ending March 31, 1971, allowing one acre-foot of surface water annually per acre irrigated.
(d) Notwithstanding the provisions of paragraphs (a), (b) and (c) of this section, there shall be no charge for water made available from storage where:
(1) The cost of the storage facility has or will be otherwise paid for by the user,
(2) Such storage controls a drainage area, and
(3) The use does not exceed the yield of such storage without augmentation from other surface water of the basin.
§ 420.24 Effective date of rates.
Rates and charges shall apply to all water users not exempt hereunder on and after the date of the first impoundment of water for water supply purposes at the Beltzville Reservoir (February 8, 1971), or the effective date hereof, whichever is later.
Entitlement; Measurement; Billing
§ 420.31 Certificate of entitlement.
(a) The Executive Director will issue to each known water user a certificate of entitlement within 30 days after the effective date of these regulations subject to the provisions of paragraph (b). In addition, any other water user may apply for a certificate of entitlement at any time. A preliminary notice of entitlement shall be issued to each user. Such entitlement shall become final and take effect, unless the user shall file with the Commission, within 20 days after the service of the notice of entitlement, a request for hearing by the Commission. At such hearing the water user may show cause why the proposed entitlement shall not take effect.
(b) The Executive Director shall schedule a hearing to be held not less than ten days after receipt of a request for a hearing by the Commission. Hearings shall be conducted and the results thereof subject to review in accordance with Article 5 of the Commission’s rules of practice and procedure.
(c) A final certificate of entitlement will be issued either upon expiration of the time to request a hearing, where there has been no request, or in accordance with the determination of a hearing where one is held.
(d) Limitations. (1) A certificate of entitlement is granted to a specific user for water withdrawals or diversions at a specific facility in the amount of the Legal Entitlement as defined in § 420.23(b).
(2) A certificate of entitlement shall not be applied, transferred or modified to apply to a facility other than the facility initially specified in the certificate.
(3) A certificate of entitlement may not be transferred from the certificate holder to another user, except as provided in the exceptions set forth in paragraph (f) of this section.
(4) A certificate of entitlement does not exempt the certificate holder from paying water supply charges for any portion of water withdrawals or diversions used outside the facility specified in the certificate and any additional service area to which the facility supplied water as of October 27, 1961 or at the facility specified in the certificate by a user other than the certificate holder. For purposes of this paragraph (d)(4), a certificate holder claiming an exemption from charges for water supplied within a service area shall submit proof satisfactory to the Commission identifying the facility’s service area as of October 27, 1961. In the absence of proof of the service area as of October 27, 1961, the service area defined in the Commission docket, if any, for the facility in effect at the time the certificate was issued shall be deemed to be the facility’s service area. In the absence of proof of a service area, the certificate shall only exempt the certificate holder from paying water supply charges for water used at the facility.
(e) Termination of certificate. (1) A certificate of entitlement terminates pursuant to this section and without the need for Commission action if at least one of the following occurs:
(i) The certificate holder dissolves or otherwise ceases to exist;
(ii) The certificate holder ceases the withdrawals or diversions at the facility to which the certificate of entitlement applies, or abandons the intake, provided that a shutdown of the facility for maintenance or improvement, or a replacement of the intake, that is performed at the earliest practicable commercially reasonable time following commencement of the shutdown or replacement, shall not be deemed to be a cessation of withdrawal or diversion;
(iii) The certificate holder through contract, lease or other agreement ceases to be the user or public water system supplier of the water withdrawn or diverted at the facility; or
(iv) There is a change in the ownership or control of the facility. Once terminated, a certificate of entitlement may not be reinstated or reissued.
(2) A change in ownership or control of the facility includes, but is not limited to, any transaction, acquisition, merger or event (collectively “transaction”) resulting in at least one of the following:
(i) A transfer of title to the facility;
(ii) A person or entity or the shareholders or other owners of an entity becoming the beneficial owner, directly or indirectly, or acquiring alone or in concert the power or right to vote at least 20 percent of any class of ownership interest in a certificate holder or any of its parent entities, regardless of the tier in the corporate or entity structure at which the transaction occurs;
(iii) A change in ownership or control for purposes of any of the certificate holder’s or any of its parent corporations’ employee agreements; or
(iv) A change of the de facto controlling interest in a certificate holder or any of its parent entities, regardless of the tier in the corporate or entity structure at which the change occurs.
(3) A change of the de facto controlling interest in an entity includes, but is not limited to, a change of the persons or entities with the ability or authority, expressed or reserved, to direct the management or policies of an entity and/or to take at least one of the following actions:
(i) Amend or change the entity’s identity (e.g. joint venture agreement, unincorporated business status);
(ii) Appoint or remove at least 50% of the members of the Board of Directors or Trustees of a corporation, general partner of a partnership, or a similar member of the governing body of an entity;
(iii) Amend or change the by-laws, constitution, or other operating or management direction of the entity;
(iv) Control the sale of, use of or access to any or all of the entity’s assets;
(v) Encumber the entity’s assets by way of mortgage or other indebtedness;
(vi) Control any or all of the assets or other property of the entity upon the sale or dissolution of the entity;
(vii) Dissolve the entity;
(viii) Arrange for the sale or transfer of the entity to a new ownership or control;
(ix) Select or change the management of the entity or determine management compensation; or
(x) Set operating policies, financial policies or budgets.
(4) For purposes of applying paragraph (e)(3) of this section, consideration may be given to circumstances particular to the person or entity and certificate holder involved, including without limitation the ability of that person or entity to take actions in light of the number of shares in the certificate holder or its parent entities that are actively voted, the practice of any majority shareholder in exercising or refraining from exercising majority rights, and any agreements giving the person or entity the right to control votes of others.
(5) A series of transactions undertaken pursuant to a plan or that are otherwise related shall be considered a single transaction for purposes of this section. For purposes of calculating the twenty percent threshold in paragraph (e)(2)(ii) of this section, the securities, shares or other interests held immediately prior to the transaction shall be added to the securities, shares or other interests acquired in the transaction.
(f) Exceptions—(1) Agricultural exception. (i) Whenever ownership or possession of land in agricultural use is transferred, any certificate of entitlement with respect to such land shall be deemed to run with the land, if but only if within sixty days following the land transfer the new user demonstrates to the Executive Director that it will continue to use the water withdrawn or diverted for agricultural irrigation. Following any such timely demonstration, the Executive Director shall transfer the certificate of entitlement to the new user. The Executive Director may extend the sixty day period for good cause shown.
(ii) A certificate of entitlement that has been transferred pursuant to paragraph (f)(1)(i) of this section relieves the user of the obligation to pay water supply charges only with respect to the quantity of water in fact used by the new certificate holder for agricultural irrigation up to the Legal Entitlement specified in the certificate, and not with respect to the quantity of water used for any other purposes. The provisions of § 420.43 shall apply to water uses outside the scope of the certificate of entitlement.
(iii) A certificate of entitlement that has been transferred pursuant to paragraph (f)(1)(i) of this section terminates pursuant to this paragraph (f)(1) and without the need for Commission action if and when the certificate holder ceases using the water for agricultural irrigation, provided that if the cessation occurs in conjunction with a transfer of ownership or possession of the land in agricultural use, the certificate of entitlement may be transferred to a new user pursuant to paragraph (f)(1)(i). Once terminated, a certificate of entitlement may not be reinstated or reissued.
(2) Corporate reorganization exceptions. The following provisions apply where a corporate parent directly or indirectly owning 100% of each class of shares of all of its subsidiary corporations decides to reorganize those subsidiary corporations without affecting the corporate parent’s 100% ownership interest.
(i) Whenever a corporate reorganization consists solely of a change of the name, identity, internal corporate structure, or place of organization of a corporate certificate holder or any of its parent corporations, the Executive Director may reissue a certificate of entitlement in the name of the new owner of the facility, provided that the reorganization does not affect ownership and/or control by the certificate holder’s corporate family of companies within the meaning of paragraphs (e)(2) through (5) of this section and does not alter the ultimate corporate parent’s 100% ownership interest.
(ii) A merger or other plan, transaction or series of transactions that effectuates a change of ownership or control within the meaning of paragraphs (e)(2) through (5) does not fall within the exemption of paragraph (f)(2)(i) of this section on the basis that a corporate reorganization constitutes part of the merger, plan, transaction or series of transactions.
§ 420.32 Measurement and billing of water taken.
(a) The quantity and volume of waters used by each person shall be determined by meters, or other methods approved by the Commission, installed, maintained and read by or on behalf of the taker. Meters or other methods of measurement shall be subject to approval and inspection by the Commission as to installation, maintenance and reading.
(b) Each user of surface water who is not exceeding the quantity specified in his “certificate of entitlement” shall annually, on or before January 31, file with the Commission, on a form to be prescribed by the Executive Director, a report of the user’s physical capability, as defined, permit limitations, and the volume of water used during the preceding year.
(c) Each user of surface water who is taking a quantity of water greater than the amount specified in his “certificate of entitlement” shall report his usage to the Commission on or before April 30, July 31, October 31 and January 31, of each year covering the next preceding calendar quarter, respectively, on forms to be prescribed by the Executive Director. The amount due for water usage in excess of the legal entitlement for each of the first three quarters of a calendar year shall be computed and paid by the user, together with the report.
(d) The Commission will render a statement of the net amount due based on the fourth quarter report, including a negative or positive adjustment, so that the net total billing and payment for four quarters will equal the total water used during the four quarters less the user’s legal entitlement, if any.
§ 420.33 Payment of bills.
The amount due for each quarter shall bear interest at the rate of 1 percent per month for each day it is unpaid beginning 30 days after the due date of the quarterly report for the first three quarters and 30 days after the bill is rendered for the fourth quarter.
Charges; Exemptions
§ 420.41 Schedule of water charges.
The schedule of water charges established in accordance with § 420.22 shall be as follows:
(a) $102 per million gallons for consumptive use, subject to paragraph (c) of this section; and
(b) $1.02 per million gallons for non-consumptive use, subject to paragraph (c) of this section.
(c) On July 1 of every year, beginning July 1, 2017, the rates established by this section will increase commensurate with any increase in the annual April 12-month Consumer Price Index (CPI) for Philadelphia, published by the U.S. Bureau of Labor Statistics during that year.
§ 420.42 Contracts; minimum charge.
Subject to the exclusions for certificates of entitlement and exempt uses, the Executive Director may require contracts for any taking, use, withdrawal or diversion of waters of the basin. Each contract shall provide for a minimum annual payment in accordance with an estimated annual demand schedule, regardless of use, withdrawal or diversion. The failure of any person to execute a contract under this section shall not affect the application of other requirements of this resolution.
§ 420.43 Exempt use.
The following uses shall be exempt from charge:
(a) Non-consumptive uses of less than 1,000 gallons during any day, and less than 100,000 gallons during any quarter.
(b) Ballast water used for shipping purposes.
(c) Water taken, withdrawn or diverted from streams tributary to the river master’s gauging station at Montague.
(d) Water taken, withdrawn or diverted below R.M. 38 (the mouth of the Cohansey River) and such proportion of waters taken, diverted or withdrawn above R.M. 38 and below R.M. 92.4 (the mouth of the Schuylkill River) as the Executive Director may determine, on the basis of hydrologic studies, would have no discernible effect upon the maintenance of the salt front below the mouth of the Schuylkill River.
§ 420.44 Cooling water.
Water used exclusively for cooling purposes which is returned to the stream in compliance with the effluent requirements of applicable water quality standards, shall be charged at the non-consumptive use rate except that losses due to in-stream evaporation caused by cooling uses will be charged as consumptive use.
§ 420.45 Historical use.
A person who or which could not for any reason use, take, withdraw or divert waters of the basin from the place in question on March 31, 1971, shall not be entitled to a certificate of entitlement.
Hydroelectric Power Water Use Charges
§ 420.51 Hydroelectric power plant water use charges.
(a) Annual base charges. Owners of conventional run-of-river hydroelectric power plants that benefit from water storage facilities owned or partially owned by the Commission shall pay an annual base charge to the Commission. The amount of the base annual charge shall be one dollar per kilowatt of installed capacity.
(b) Annual variable charges. In addition to the base charge established in (a) of this section, annual charges based on power generated at each facility will be assessed as follows:
(1) Owners of hydroelectric power plants that benefit from increased hydraulic head available to the hydroelectric project as a result of investments by the Commission shall be charged one mill per kilowatt-hour of energy produced.
(2) Owners of hydroelectric power plants that derive additional benefits from increased flows available to the hydroelectric project that would not have been available without the Commission-sponsored project shall be charged one-half mill per kilowatt-hour of energy produced. No charges for increased flows will be required when charges for increased hydraulic head are in effect.
(3) Charges for the use of any facilities such as pipe conduits, outlet works, and so on, installed in, on or near a Commission-sponsored project that benefit the hydroelectric project in any way will be determined on a case-by-case basis as approved by the Commission.
(c) Credits. The owner of any hydroelectric generating facility shall receive a credit against the current year water use fee otherwise payable to the Commission for any amount which the Commission receives from the U.S. Army Corps of Engineers or from the Federal Energy Regulatory Commission for each calendar year.
(d) Exemptions. No payment will be required when hydroelectric power facility water use charges would amount to less than $25 per year. Retroactive charges will not be assessed for facilities which have already obtained Commission approval pursuant to Section 3.8 of the Delaware River Basin Compact. All hydroelectric generating projects that do not benefit from storage owned or partially owned by the Commission are exempt from these Commission water charges.
(e) Payment of bills. The amount due each year shall bear interest at the rate of 1% per month for each day it is unpaid beginning 30 days after the due date. Payments are due within 30 days of the end of each calendar year. Annual base charges will be prorated for periods less than a year.
SUBCHAPTER B—SPECIAL REGULATIONS
PART 430—GROUND WATER PROTECTION AREA: PENNSYLVANIA
§ 430.1 Policy.
The provisions of this part implement Commission Resolutions 80-18 and 80-27 relating to ground water protection in southeastern Pennsylvania.
§ 430.3 Purpose.
The purpose of this regulation is to protect the ground water resources in the Triassic lowland and adjacent area of southeastern Pennsylvania and the public interest in those resources. In particular this regulation is to:
(a) Assure the effective management of water withdrawals to avoid depletion of natural stream flows and ground waters and to protect the quality of such water.
(b) Assure that ground water withdrawals are undertaken consistent with the policies stated in the Comprehensive Plan.
(c) Protect the just and equitable interests and rights of present and future lawful users of water resources, giving due regard to the need to balance and reconcile alternative and conflicting uses in view of present and threatened shortages of water of the quality required to serve such uses.
(d) Provide a mechanism for the acquisition of additional information necessary to more accurately plan and manage water resources.
(e) Encourage all water users to adopt and implement reasonable water conservation measures and practices, to assure efficient use of limited water supplies.
§ 430.5 Definitions.
For purposes of this regulation, except as otherwise required by the context:
Aquifer means waterbearing formation that contains sufficient ground water to be important as a source of supply.
Comprehensive Plan means the plans, policies and programs adopted as part of the Comprehensive Plan of the Delaware Basin in accordance with section 3.2 and Article 13 of the Delaware River Basin Compact.
Ground water means all water beneath the surface of the ground.
Ground water basin means a subsurface structure having the character of a basin with respect to the collection, retention and outflow of water.
Ground water protected area means the areas declared and delineated by the Commission to be a ground water protected area pursuant to Article 10 of the Delaware River Basin Compact and this regulation.
Ground water recharge means the addition of water to an aquifer by infiltration of precipitation through the soil, infilitration from surface streams, lakes or reservoirs, flow of ground water from another aquifer, or pumpage of water into the aquifer through wells.
Project means the same word as defined by section 1.2(g) of the Delaware River Basin Compact.
Protected area permit means a permit to divert or withdraw ground water within the ground water protected area for domestic, municipal, agricultural or industrial uses, granted pursuant to section 10.3 of the Delaware River Basin Compact and this regulation.
§ 430.7 Determination of protected areas and restriction on water use.
In consideration of the foregoing facts and for the purposes cited above:
(a) The Commission hereby determines and delineates the following area to be a protected area within the meaning and for the purpose of Article 10 of the Delaware River Basin Compact:
The “Southeastern Pennsylvania Ground Water Protected Area” shall consist of those portions of the following listed counties and political subdivision located within the Delaware Basin:
| Townships | |
| Berks County | Douglass, Hereford, Union. |
| Bucks County | Bedminster, Buckingham, Doylestown, East Rockhill, Hilltown, Lower Southampton, Middletown, Milford, New Britain, Newtown, Northampton, Plumstead, Richland, Upper Southampton, Warminster, Warrington, Warrick, West Rockhill, Wrightstown. |
| Boroughs | |
| Chalfont, Doylestown, Dublin, Hulmeville, Ivyland, Langhorne, Langhorne Manor, New Britain, Newtown, Penndel, Perkasie, Quakertown, Richlandtown, Sellersville, Silverdale, Telford, Trumbauersville. | |
| Townships | |
| Chester County | Birmingham, Charlestown, East Coventry, East Bradford, East Goshen, East Pikeland, Easttown, East Vincent, East Whiteland, North Coventry, Schuylkill, South Coventry, Thornbury, Tredyffrin, Warwick, West Bradford, West Goshen, Westtown, Willistown, West Whiteland. |
| Boroughs | |
| Elverson, Malvern, Phoenixville, Spring City, West Chester. | |
| Townships | |
| Lehigh County | Lower Milford. |
| Montgomery County | All of the area within the county boundary. |
(b) The Commission hereby determines that within the Southeastern Pennsylvania Ground Water Protected Area demands upon available ground water supplies have developed or threaten to develop to such a degree as to create a water shortage or to impair or conflict with the requirements or effectuation of the Comprehensive Plan. Accordingly, no person, firm, corporation or other entity within the area shall withdraw ground water for any purpose at a rate exceeding 10,000 gallons per day, except as prescribed by this regulation.
§ 430.9 Comprehensive plan policies.
The water resources within the Southeastern Pennsylvania Ground Water Protected Area shall be managed consistent with the Comprehensive Plan policies. For purposes of this ground water protected area, section 2.20.4 of the Water Code of the Delaware River Basin shall be applied using the following definition of the term “withdrawal limits”:
(a) Withdrawal limits. Except as may be otherwise determined by the Commission to be in the public interest, withdrawals from the underground waters of the basin shall be limited to the maximum draft of all withdrawals from a ground water basin, aquifer, or aquifer system that can be sustained without rendering supplies unreliable, causing long-term progressive lowering of ground water levels, water quality degradation, permanent loss of storage capacity, or substantial impact on low flows of perennial streams.
(b) [Reserved]
§ 430.11 Advance notice of exploratory drilling.
The Commission encourages consultation with any project sponsor who is considering development of a new or expanded ground water withdrawal that is being planned for any purpose when the daily average withdrawal during any calendar month exceeds 10,000 gallons to insure proper implementation of this regulation and to reduce the possibility of investment in new ground water development facilities which may not be approved hereunder. Such consultation should occur early in the planning stage of a new project and prior to initiation of exploratory drilling.
(a) Any person, firm corporation or other entity planning a new or expanded ground water withdrawal that may be operated at a daily average withdrawal during any calendar month in excess of 10,000 gallons shall notify the Executive Director not less than 30 days prior to initiation of exploratory drilling. Such notice shall be in writing and shall specify the location of proposed new facility, the anticipated rate of withdrawal, and the general purpose of the proposed water use. The notice shall also state the location of existing wells within the radius set forth in § 430.21(a).
(b) Whenever the Executive Director shall deem necessary, or upon request of a party proposing a new or expanded withdrawal of ground water, an informal conference may be scheduled to review the nature of the proposed withdrawal, the applicability of the Commission’s standards relating to ground water, and the requirements of a protected area permit under this regulation.
§ 430.13 Protected area permits for new withdrawals.
Any person, firm, corporation or other entity who proposes to develop a new ground water withdrawal or expand an existing ground water withdrawal for any purpose within the Southeastern Pennsylvania Ground Water Protected Area shall be required to obtain a protected area permit under this regulation if the proposed new or increased rate of withdrawal from a well or group of wells operated as a system average more than 10,000 gallons per day over a 30-day period. Whenever the Executive Director, upon investigation or upon a reference from a state or federal agency, determines that a new or increased withdrawal from a group of wells within the protected area, whether or not such wells are operated as a system, may have a substantial effect on the water resources of the basin or is likely to have a significant adverse effect on other water uses within the protected area, the Commission may direct a notice to the owners or sponsors of such wells, and require such owners or sponsors to apply for and obtain a protected area permit under this regulation.
(a) Applications for a protected area permit shall be submitted to the Commission on forms approved by the Executive Director. Each application shall be accompanied by the following information:
(1) A map indicating the location of existing wells and perennial streams.
(2) A written report prepared by a hydrogeologist describing the expected effects of the proposed withdrawal on existing wells, flows of perennial streams and the long-term lowering of ground water levels.
(3) A log showing the nature of subsurface material encountered during the construction and installation of the exploratory or production well(s).
(4) The detailed results of extended pump tests, of not less than 48 hours duration, and records of observations during such pump tests from representative monitoring wells.
(b) Applications for a protected area permits whose daily average withdrawal during any calendar month is in excess of 10,000 gallons shall be accompanied by an application fee of $100. Government agencies shall be exempt from such application fee.
(c) If the application for a protected area permit is for a daily average withdrawal during any calendar month in excess of 100,000 gallons, it shall be accompanied by such other information or exhibits required by Article 3 of the Commission’s Rules of Practice and Procedure. In such cases, only the application fee required by the Rules will be assessed.
(d) To qualify for approval of a protected area permit, the owner or sponsor of the proposed withdrawal shall demonstrate that:
(1) The proposed withdrawal is consistent with the Commission’s Comprehensive Plan and the policies and purposes of these regulations.
(2) Opportunities to satisy water requirements on a timely basis from existing available supplies and facilities have been explored and found infeasible.
(3) The proposed withdrawal, in conjunction with other withdrawals in the applicable ground water basin, will not exceed withdrawal limits of a ground water basin, aquifer or aquifer system.
(4) The proposed withdrawal will not significantly impair or reduce the flow of perennial streams in the area.
(5) Existing ground and surface water withdrawals will not be adversely impacted, or will be otherwise assured of adequate supplies in accordance with the requirements of § 430.19 of this part.
(6) The proposed withdrawal will not cause substantial, permanent adverse impact to the overlying environment.
(7) The owner or sponsor has adopted and will implement conservation and management programs as required by § 430.15 of this part.
(e) Ground water withdrawals for space heating or cooling purposes that are less than 100,000 gallons per day shall be exempt from obtaining a protected area permit provided that the water withdrawn is returned locally, and to the same ground water basin and aquifer system from which it is withdrawn, undiminished in quantity and quality (except temperature). Ground water withdrawals for space heating or cooling that are subsequently used for commercial or industrial water supply purposes are subject to Commission withdrawal and wastewater discharge regulations. Ground water withdrawals exempted pursuant to this subsection shall be subject to the registration requirements of § 430.17.
(f) All ground water withdrawal projects exempted by subsection “e” above shall be constructed in conformance with accepted industry practice and as a minimum shall comply with the following standards:
(1) All wells shall be drilled by a Pennsylvania licensed well driller and a Water Well Inventory Report shall be completed and filed with the Pennsylvania Department of Environmental Resources (PADER);
(2) No wells shall be located within a 100-year floodway;
(3) All wells shall have top of casing extended a minimum of one foot above the 100-year flood elevation;
(4) All wells shall have the casing protruding a minimum of six inches above the immediate surrounding grade;
(5) The area around all wells or well pits shall be constructed and/or graded to prevent the entrance of surface waters;
(6) All wells shall be accessible for inspection and shall have an access hole for water level measurements;
(7) In order to protect against significant leaks of refrigerant, all ground water heat pump systems shall be equipped with an automatic shutdown device that senses abnormally low or abnormally high refrigerant pressures;
(8) Any drilled well holes that are abandoned shall be sealed with a minimum of ten feet of cement grout. Additional seals may be required to separate different water-bearing zones.
(g) Protected area permits shall be approved or disapproved by the Executive Director with the concurrence of the Pennsylvania member of the Commission or his alternate.
(h) Dockets and protected area permits may be issued for a duration of up to ten years and shall specify the maximum total withdrawals that must not be exceeded during any consecutive 30-day period. Such maximum total withdrawals shall be based on demands projected to occur during the duration of the docket or protected area permit.
(i) Ground water withdrawal limits shall be defined for subbasins in accordance with the provisions of (i)(1) or (2) of this section. The limits for specific subbasins are set forth in (i)(3) of this section.
(1) Baseflow frequency analyses shall be conducted for all subbasins in the Southeastern Pennsylvania Ground Water Protected Area. The analyses shall determine the 1-year-in-25 average annual baseflow rate. The 1-year-in-25 average annual baseflow rate shall serve as the maximum withdrawal limit for net annual ground water withdrawals for subbasins. If net annual ground water withdrawals exceed 75 percent of this rate for a subbasin, such a subbasin shall be deemed “potentially stressed.” The Commission shall maintain a current list of net annual ground water withdrawals for all subbasins. “Net” annual ground water withdrawals includes total ground water withdrawals less total water returned to the ground water system of the same subbasin.
(2) Upon application by the appropriate governmental body or bodies, the withdrawal limits criteria set forth in (i)(1) of this section may be revised by the Commission to provide additional protection for any subbasin identified in (i)(3) of this section with streams or stream segments designated by the Commonwealth of Pennsylvania as either “high quality,” or “exceptional value,” or “wild,” or “scenic,” or “pastoral,” or to correspond with more stringent requirements in integrated resource plans adopted and implemented by all municipalities within a subbasin identified in (i)(3) of this section. Integrated resource plans shall be developed according to sound principles of hydrology. Such plans shall at a minimum assess water resources and existing uses of water; estimate future water demands and resource requirements; evaluate supply-side and demand-side alternatives to meet water withdrawal needs; assess options for wastewater discharge to subsurface formations and streams; consider stormwater and floodplain management; assess the capacity of the subbasin to meet present and future demands for withdrawal and nonwithdrawal uses such as instream flows; identify potential conflicts and problems; incorporate public participation; and outline plans and programs including land use ordinances to resolve conflicts and meet needs. Integrated resource plans shall be adopted and implemented by all municipalities within a subbasin and incorporated into each municipality’s Comprehensive Plan.
(3)(i) The potentially stressed levels and withdrawal limits for all delineated basins and subbasins are set forth below:
| Subbasin | Potentially Stressed (mgy) 1 | Withdrawal Limit (mgy) |
|---|---|---|
| Neshaminy Creek Basin | ||
| West Branch Neshaminy Creek Basin | 1054 | 1405 |
| Pine Run Basin | 596 | 795 |
| North Branch Neshaminy Creek | 853 | 1131 |
| Doylestown Subbasin Neshaminy Creek | 710 | 946 |
| Warwick Subbasin Neshaminy Creek | 889 | 1185 |
| Warrington Subbasin Little Neshaminy Creek | 505 | 673 |
| Park Creek Basin | 582 | 776 |
| Warminster Subbasin Little Neshaminy Creek | 1016 | 1355 |
| Mill Creek Basin | 1174 | 1565 |
| Northampton Subbasin Neshaminy Creek | 596 | 794 |
| Newtown Creek | 298 | 397 |
| Core Creek Basin | 494 | 658 |
| Ironworks Creek Basin | 326 | 434 |
| Schuylkill River Basin | 3026 | 4034 |
| Lower Section Subbasin Neshaminy Creek | ||
| Hay Creek | 974 | 1299 |
| Lower Reach Manatawny-Ironstone Creek | 1811 | 2414 |
| Pigeon Creek | 611 | 815 |
| Schuylkill-Crow Creek | 1157 | 1543 |
| Schuylkill-Mingo Creek | 671 | 895 |
| Schuylkill-Plymouth-Mill Creeks | 4446 | 5929 |
| Schuylkill-Sixpenny Creek | 1490 | 1987 |
| Schuylkill-Sprogels Run | 1091 | 1455 |
| Schuylkill-Stony Creek | 687 | 916 |
| Schuylkill-Trout Creek | 1082 | 1443 |
| Stony Creek | 1242 | 1655 |
| Valley Creek | 1865 | 2486 |
| French and Pickering Creek Subbasins | ||
| Lower Reach French Creek | 634 | 845 |
| Lower Reach Pickering Creek | 1716 | 2288 |
| Middle Reach French Creek | 1608 | 2145 |
| South Branch French Creek | 1044 | 1393 |
| Upper Reach French Creek | 1295 | 1726 |
| Upper Reach Pickering Creek | 1358 | 1811 |
| Perkiomen and Skippack Creek Subbasins | ||
| East Branch Perkiomen-Indian Creeks | 633 | 844 |
| East Branch Perkiomen-Mill Creeks | 720 | 961 |
| East Branch Perkiomen-Morris Run | 1214 | 1619 |
| Hosensack-Indian Creeks | 1257 | 1676 |
| Lower Reach Skippack Creek | 1069 | 1426 |
| Perkiomen-Deep Creeks | 1047 | 1396 |
| Perkiomen-Lodal Creeks | 1200 | 1600 |
| Perkiomen-Macoby Creek | 1252 | 1669 |
| Swamp-Middle Creeks | 1423 | 1898 |
| Swamp-Minister Creeks | 547 | 730 |
| Swamp-Scioto Creeks | 746 | 994 |
| Towamencin Creek | 466 | 622 |
| Unami-Licking Creeks | 992 | 1322 |
| Unami-Ridge Valley Creeks | 1068 | 1424 |
| Upper Reach Perkiomen Creek | 1223 | 1631 |
| Upper Reach Skippack Creek | 813 | 1084 |
| West Branch Perkiomen Creek | 1566 | 2088 |
| Delaware River Basin | ||
| Jericho Creek | 421 | 562 |
| Mill Creek | 1600 | 2134 |
| Paunnacussing Creek | 513 | 684 |
| Pidcock Creek | 563 | 751 |
| Upper Reach Cobbs Creek | 871 | 1161 |
| Upper Reach Crum Creek | 1290 | 1721 |
| Upper Reach Darby Creek | 1625 | 2167 |
| Upper Reach East Branch Chester Creek | 1865 | 2487 |
| Upper Reach Frankford Creek | 1414 | 1886 |
| Upper Reach Poquessing Creek | 1008 | 1344 |
| Upper Reach Ridley Creek | 1707 | 2275 |
| Tohickon Subbasin | ||
| Tohickon-Beaver-Morgan Creeks | 1156 | 1541 |
| Tohickon-Deep Run | 956 | 1274 |
| Tohickon-Geddes-Cabin Runs | 602 | 803 |
| Tohickon-Lake Nockamixon | 556 | 741 |
| Tohickon-Three Mile Run | 726 | 968 |
| Pennypack and Wissahickon Subbasins | ||
| Lower Reach Wissahickon Creek | 2750 | 3666 |
| Upper Reach Wissahickon Creek | 1302 | 1736 |
| Middle Reach Pennypack Creek | 1295 | 1727 |
| Upper Reach Pennypack Creek | 1358 | 1811 |
| Brandywine Creek Subbasin | ||
| East Branch Brandywine-Taylor Run | 1054 | 1405 |
| Middle Reach Brandywine Creek | 823 | 1098 |
| Upper Reach Brandywine Creek | 1614 | 2153 |
| West Branch Brandywine-Beaver Run | 2110 | 2813 |
| West Branch Brandywine-Broad Run | 2380 | 3173 |
| West Valley Creek | 1673 | 2231 |
| Lehigh Subbasin | ||
| Upper Reach Saucon Creek | 946 | 1262 |
1 mgy means million gallons per year.
(ii) Subject to public notice and hearing, this section may be updated or revised based upon new and evolving information on hydrology and streamflow and ground water monitoring or in accordance with paragraph (i)(2) of this section.
(j) Upon its determination that a subbasin is potentially stressed, the Commission shall notify all ground water users in the subbasin withdrawing 10,000 gallons per day or more during any 30-day period of its determination. If any such users have not obtained a docket or protected area permit from the Commission, they shall be required to apply to the Commission within 60 days of notification.
(k) In potentially stressed subbasins, dockets and protected area permit applications for new or expanded ground water withdrawals must include one or more programs to mitigate the adverse impacts of the new or expanded ground water withdrawal. The eligible programs are noted below. If the remainder of the application and the program(s) submitted are acceptable, the withdrawal may be approved by the Commission for an initial three-year period. The applicant shall implement the program(s) immediately upon Commission approval. If after the three-year period the program(s) is deemed successful by the Commission, the docket or permit duration may be extended for up to 10 years. The project sponsor shall be required to continue the program(s) for the duration of the docket or permit.
(1) A conjunctive use program that demonstrates the applicant’s capability to obtain at least 15 percent of its average annual system usage from a reliable surface water supply. An acceptable program shall include either reservoir storage or an interconnection with a surface water supplier and an agreement or contract to purchase water from the supplier for the duration of the docket or permit.
(2) A water conservation program that exceeds the requirements of § 430.15. For existing water utilities, the program shall reduce average annual per capita water usage by at least five percent. All conservation programs shall include water conservation pricing, either inclining block rates, seasonal rates, or excess-use surcharges, and plumbing fixture rebate or retrofit components. For self-supplied users, the program shall include water efficient technologies such as recycling, reuse, xeriscaping, drip or micro irrigation, or other innovative technology approved by the Commission.
(3) A program to monitor and control ground water infiltration to the receiving sewer system. The program must quantify ground water infiltration to the system and document reductions in infiltration. The program should include such measures as leakage surveys of sewer mains, metering of sewer flows in mains and interceptors, analysis of sewer system flows to quantify infiltration, and remedial measures such as repair of leaks and joints, main lining, and main replacement.
(4) An artificial recharge or spray irrigation program that demonstrates a return of at least 60 percent of the total new or expanded annual withdrawal to the same ground water basin and aquifer system from which it is withdrawn. The program shall not impair ground water quality.
(5) An alternative program approved by the Commission to mitigate the adverse impacts of the new or expanded ground water withdrawal.
(l) The durations of all existing dockets and protected area permits may be extended by the Commission for an additional five years if the docket or permit holder successfully implements in either (k)(1) or (k)(2) of this section. If the docket or permit holder successfully implements both options, the docket or permit may be extended for an additional ten years. The Executive Director shall notify all docket and permit holders potentially affected by this resolution of their right to file an application to determine their eligibility for extension.
(m) It is the policy of the Commission to prevent, to the extent reasonably possible, net annual ground water withdrawals from exceeding the maximum withdrawal limit. An application for a proposed new or expanded ground water withdrawal that would result in net annual ground water withdrawals exceeding the maximum withdrawal limit established in paragraph (i)(3) of this section shall set forth the applicant’s proposal for complying with the Commission’s policy, with such supporting documentation as may be required by the Executive Director. Notification of the application shall be given to all affected existing water users who may also submit comments or recommendations for consideration by the Commission on the pending application. In taking action upon the application, the Commission shall give consideration to the submissions from the applicant and affected water users. If the Commission determines that it is in the public interest to do so, it may reduce the total of proposed and existing ground water withdrawals within a subbasin to a level at or below the withdrawal limit. Unless otherwise determined by the Commission, docket and permit holders shall share equitably in such reductions.
§ 430.15 Conservation requirements.
The following conservation requirements shall apply to all existing, new or expanded ground water withdrawals for municipal, public, industrial or commercial water supply whose cumulative daily average withdrawal from one or more wells during any calendar month exceeds 10,000 gallons.
(a) Each person, firm, corporation or other entity withdrawing ground water within the Southeastern Pennsylvania Ground Water Protected Area for purposes of municipal or public water supply shall comply with the following conservation requirements:
(1) Water connections shall be metered, and water charges collected shall be based on metered usage.
(2) A water conservation program shall be initiated and diligently pursued within the service area of the municipal or public water supply. Such program shall include a program for leakage control providing for the monitoring, prevention and repair of significant leakage, and the provision of customer information relating to water-saving devices.
(3) Interconnections with adjacent water systems shall be considered to assure more reliable supplies of water during emergencies.
(4) A drought emergency plan specifying actions which would be taken to reduce demand and assure supplies to priority uses in the event of drought conditions shall be prepared in cooperation with the municipalities in the service area. The plan shall be filed with the Commission.
(b) Each person, firm, corporation or other entity withdrawing ground water within the Southeastern Pennsylvania Ground Water Protected Area for purposes of industrial or commercial water supply shall comply with the following conservation requirements:
(1) Opportunities for water conservation shall be investigated and all feasible conservation measures shall be implemented at the earliest practicable time.
(2) Water uses shall be monitored, and a systematic process shall be adopted and implemented to provide for the detection and expeditious correction of leakage.
(3) A drought emergency plan specifying the actions to be taken to reduce demand in the event of drought conditions shall be prepared and filed with the Commission.
(c) Permits issued pursuant to these regulations shall be conditioned upon compliance with the requirements of this section.
§ 430.17 Registration of existing withdrawals.
(a) Existing users of ground water within the Southeastern Pennsylvania Ground Water Protected Area whose lawful use commenced prior to the effective date of this regulation, whose cumulative monthly average daily withdrawal from one or more wells exceeds 10,000 gallons and whose withdrawal has not previously been approved by DRBC, pursuant to section 3.8 of the Compact, shall, prior to July 1, 1981, register their use with the Pennsylvania Department of Environmental Resources acting as agent for the Commission. Registration is required as a condition for such existing users being eligible for the protection afforded by this regulation. Such registration shall include withdrawals from quarries that are not fed by surface streams.
(b) Registrations shall be filed on forms approved by the Executive Director of the Commission. Each registrant shall provide, without limitation thereto, the following:
(1) A description of the location, size and depth of each well and the pump facilities installed therein.
(2) The estimated quantity of water withdrawn from each well, or related group of wells, during each month of 1980.
(3) The purposes for which the water is withdrawn, its place of use, and the approximate quantity of water used for each purpose.
(4) The location and method of wastewater disposal and discharge.
(5) A registration fee of $5 for each well.
§ 430.19 Ground water withdrawal metering, recording, and reporting.
(a) Each person, firm, corporation, or other entity whose cumulative daily average withdrawal of ground water from a well or group of wells operated as a system exceeds 10,000 gallons per day during any 30-day period shall meter or measure and record their withdrawals and report such withdrawals to the Pennsylvania Department of Environmental Resources. Withdrawals shall be measured by means of an automatic continuous recording device, flow meter, or other method, and shall be measured to within five percent of actual flow. Meters or other methods of measurement shall be subject to approval and inspection by the Pennsylvania Department of Environmental Resources as to type, method, installation, maintenance, calibration, reading, and accuracy. Withdrawals shall at a minimum be recorded on a daily basis for public water supply use and on a biweekly basis for all other water uses, and reported as monthly totals annually. More frequent recording or reporting may be required by the Pennsylvania Department of Environmental Resources or the Commission.
(b) The following water uses and operations are exempt from the metering or measurement requirements of paragraph (a): Agricultural irrigation; snowmaking; dewatering incidental to mining and quarrying; dewatering incidental to construction; and space heating or cooling uses that are exempt from permit requirements in § 430.13. Except for space heating and cooling uses described herein, persons engaged in such exempt withdrawals in excess of 10,000 gallons per day during any 30-day period shall record the pumping rates and the dates and elapsed hours of operation of any well or pump used to withdraw ground water, and report such information as required in paragraph (a). Space heating and cooling uses that are exempt from permit requirements in § 430.13 shall also be exempt from the requirement for recording and reporting.
(c) Pursuant to section 11.5 of the Compact, the Pennsylvania Department of Environmental Resources shall administer and enforce a program for metering, recording, and reporting ground-water withdrawals in accordance with this regulation.
§ 430.21 Protection of existing users.
(a) Protected area permits issued under this regulation for new or expanded withdrawals of ground water shall include conditions to protect the owners of existing wells in accordance with the provisions of this section.
(b) Any person, firm, corporation or other entity who commences a new or expanded withdrawal of ground water that is subject to the requirement of a protected area permit under this regulation shall provide mitigating measures if the withdrawal significantly affects or interferes with any existing well. Mitigation measures may consist of:
(1) Providing an alternative water supply, of adequate quantity and quality, to the effected well owner(s);
(2) Providing financial compensation to the affected well owner(s) sufficient to cover the costs of acquiring an alternative water supply of adequate quantity and quality; or
(3) Such other measures as the Commission shall determine to be just and equitable under the circumstances present in the case of any individual application.
§ 430.23 Technical determinations and procedures.
(a) The radius to be considered in assessing the potential impact of a proposed new or expanded ground water withdrawal, as required by §§ 430.11 and 430.13 of this part shall be as follows:
| Quantity of cumulative proposed withdrawal (gpd) | Radius from the proposed withdrawal to be considered (miles) |
|---|---|
| 10,000 to 50,000 | 0.5 |
| 50,000 to 100,000 | 0.75 |
| In excess of 100,000 | 1.0 |
(b) Ground water withdrawal limits, as defined in section 2.20.4 of the Water Code of the Delaware River Basis and § 430.9 of this part, shall be calculated on the basis of the average recharge rate to the basin, aquifer, or aquifer system during repetition of a period which includes the worst recorded drought.
(c) The requirement of paragraph (a) or (b) of this section may be modified or waived by the Executive Director or the Commission if an applicant adopts and implements a program for coordinated use of ground and surface water, and the applicant demonstrates that operation of the coordinated program will be consistent with the policies contained in the Comprehensive Plan and the purposes of these regulations.
§ 430.25 Other permit requirements.
(a) Except to the extent provided in these regulations, registration of existing ground and surface water withdrawals and the issuance of withdrawal permits hereunder shall not create any private or proprietary rights in the water of the basin and the Commission reserves the right to amend, alter, or repeal these regulations and to amend, alter or rescind any actions taken hereunder in order to insure the proper control, use and management of the water resources of the basin.
(b) Neither the obligation to obtain a protected area permit under this regulation, nor the receipt thereof, shall relieve the sponsor of a new or expanded ground water withdrawal project of the obligation to obtain any other applicable permits required by Federal, state or local government agencies.
(c) A new or expanded ground water withdrawal subject to the requirement of a protected area permit under this regulation shall not require any further approval by the Commission if the daily average withdrawal during any calendar month is less than 100,000 gallons. If the new or expanded withdrawal exceeds a daily average of 100,000 gallons during any calendar month, the project shall be subject to review and approval by the commission pursuant to section 3.8 of the Delaware River Basin Compact, and the requirement of a protected area permit for such a project shall be in addition to other requirements of the Commission and its Rules of Practice and Procedure.
§ 430.27 Emergencies.
In the event of an emergency requiring immediate action to protect the public health and safety or to avoid substantial and irreparable injury to any private person or property, and the circumstances do not permit full review and determination in accordance with these regulations, the Executive Director, with the concurrence of the Pennsylvania member of the Commission or his alternate, may issue an emergency permit authorizing an applicant to take such action relating to these regulations as the Executive Director may deem necessary and proper. In such cases, the applicant shall be fully responsible for protecting existing ground water users, as prescribed in § 430.19 of this part. The Executive Director shall report at the next meeting of the Commission on the nature of the emergency and any action taken under this section.
§ 430.29 Appeals.
Any person aggrieved by any action or decision of the Executive Director taken under these regulations shall be entitled upon timely filing of a request therefor, to a hearing in accordance with Article 6 of the Commission’a Rules of Practice and Procedure.
§ 430.31 Sanctions: Civil and criminal.
(a) Any person, association, corporation, public or private entity who or which violates or attempts or conspires to violate any provision of this regulation, or any order, regulation or permit issued in furtherance thereof, shall be punishable as provided in section 14.17 of the Compact.
(b) General Counsel of the Commission may, in his discretion, request the appropriate law enforcement officers of the Commonwealth of Pennsylvania to prosecute any or all violations of this regulation in accordance with the Compact and the laws of the Commonwealth, and for recovery of the fines fixed by section 14.17 of the Compact, in the name and on behalf of the Commission. The Commonwealth of Pennsylvania and its law enforcement officers are hereby requested pursuant to sections 10.1 and 11.5 of the Compact, to provide such technical, professional and administrative services as may be required for such enforcement.
(c) In addition to such penal sanctions as may be imposed pursuant to this section, any violation of this regulation shall be subject to such civil remedies by injunction and otherwise as provided by law.
§ 430.33 Duration.
The delineation and declaration of the Southeastern Pennsylvania Ground Water Protected Area made pursuant to this regulation, and the requirements established hereby, shall continue until terminated by specific action of the Commission.
§ 430.35 Amendments.
Upon request by any interested party, or on its own motion, the Commission may consider amendment of this regulation, and modify the geographic boundaries of the protected area, in accordance with Article 10 of the Compact.
PARTS 431-439 [RESERVED]
PART 440—HIGH VOLUME HYDRAULIC FRACTURING
(a) Purpose. The purpose of this part is to protect and conserve the water resources of the Delaware River Basin. To effectuate this purpose, this section establishes standards, requirements, conditions, and restrictions to prevent or reduce depletion and degradation of surface and groundwater resources and to promote sound practices of water resource management.
(b) Authority. This part implements Sections 3.1, 3.2(a), 3.2 (b), 3.6(b), 3.6(h), 4.1, 5.2, 7.1, 13.1 and 14.2(a) of the Delaware River Basin Compact.
(c) Comprehensive Plan. The Commission has determined that the provisions of this part are required for the immediate and long range development and use of the water resources of the Basin and are therefore incorporated into the Commission’s Comprehensive Plan.
(d) Relationship to other Commission requirements. The provisions of this part are in addition to all applicable requirements in other Commission regulations, dockets, permits, and determinations.
(e) Severability. The provisions of this part are severable. If any provision of this part or its application to any person or circumstances is held invalid, the invalidity will not affect other provisions or applications of this part, which can be given effect without the invalid provision or application.
(f) Coordination and avoidance of duplication. In accordance with and pursuant to section 1.5 of the Delaware River Basin Compact, to the fullest extent it finds feasible and advantageous the Commission may enter into an Administrative Agreement (Agreement) with any Basin state or the Federal Government to coordinate functions and eliminate unnecessary duplication of effort. Such Agreements will be designed to: Effectuate intergovernmental cooperation, minimize the efforts and duplication of state and Commission staff resources wherever possible, ensure compliance with Commission-approved requirements, enhance early notification of the general public and other interested parties regarding proposed activities in the Basin, indicate where a host state’s requirements satisfy the Commission’s regulatory objectives, and clarify the relationship and project review decision making processes of the states and the Commission for projects subject to review by the states under their state authorities and by the Commission under Section 3.8 and Articles 6, 7, 10 and 11 of the Compact.
§ 440.2 Definitions.
For purposes of this part, the following terms and phrases have the meanings provided. Some definitions differ from those provided in regulations of one or more agencies of the Commission’s member states and the Federal Government. Other definitions are consistent with terms defined by the Delaware River Basin Compact.
Basin is the area of drainage into the Delaware River and its tributaries, including Delaware Bay.
Commission is the Delaware River Basin Commission (DRBC) created and constituted by the Delaware River Basin Compact.
Discharge of wastewater from HVHF and HVHF-related activities is an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, spreading, spraying, injecting, leaching, dumping, or disposing of such wastewater to waters or land within the Basin, and including the abandonment or discarding of barrels, containers, and other receptacles containing such wastewater.
Fracturing fluid(s) is a mixture of water (whether fresh or recycled) and/or other fluids and chemicals or other additives, which are injected into the subsurface and which may include chemicals used to reduce friction, minimize biofouling of fractures, prevent corrosion of metal pipes or remove drilling mud damage within a wellbore area, and propping agents such as silica sand, which are deposited in the induced fractures.
High volume hydraulic fracturing (HVHF) is hydraulic fracturing using a combined total of 300,000 or more gallons of water during all stages in a well completion, whether the well is vertical or directional, including horizontal, and whether the water is fresh or recycled and regardless of the chemicals or other additives mixed with the water.
HVHF-related activities are:
(1) Construction of an oil or natural gas production well that is to be stimulated using HVHF as defined in this section;
(2) Chemical mixing or storage of proppant, chemicals and other additives to make fracturing fluid; and
(3) Management of wastewater from hydraulic fracturing, including storage, disposal, treatment, or reuse in hydraulic fracturing operations or other uses.
Hydraulic fracturing is a technique used to stimulate the production of oil and natural gas from a well by injecting fracturing fluids down the wellbore under pressure to create and maintain induced fractures in the hydrocarbon-bearing rock of the target geologic formation.
Person is any natural person, corporation, partnership, association, company, trust, Federal, state, or local governmental unit, agency, or authority, or other entity, public or private.
Wastewater from HVHF and HVHF-related activities is:
(1) Any wastewater, brine, or sludge containing chemicals, naturally occurring radioactive materials, heavy metals or other contaminants that have been used for or generated by high volume hydraulic fracturing or HVHF-related activities;
(2) Leachate from solid wastes associated with HVHF-related activities, except if the solid wastes were lawfully disposed of in a landfill within the Basin prior to March 6, 2023; and
(3) Any products, co-products, byproducts, or waste products resulting from the treatment, processing, or modification of the wastewater described in paragraphs (1) and (2) of this definition.
Water resource(s) is, in accordance with section 1.2(i) of the Delaware River Basin Compact, water and related natural resources in, on, under, or above the ground, including related uses of land, which are subject to beneficial use, ownership or control within the Delaware River Basin.
§ 440.3 High volume hydraulic fracturing (HVHF).
(a) Determination. The Commission has determined that high volume hydraulic fracturing poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the water resources of the Delaware River Basin and to Special Protection Waters of the Basin, considered by the Commission to have exceptionally high scenic, recreational, ecological, and/or water supply values. Controlling future pollution by prohibiting such activity in the Basin is required to effectuate the Comprehensive Plan, avoid injury to the waters of the Basin as contemplated by the Comprehensive Plan, and protect the public health and preserve the waters of the Basin for uses in accordance with the Comprehensive Plan.
(b) Prohibition. High volume hydraulic fracturing in hydrocarbon bearing rock formations is prohibited within the Delaware River Basin.
(a) Determination. The Commission has determined that the discharge of wastewater from high volume hydraulic fracturing and HVHF-related activities poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the Basin’s water resources. Controlling future pollution by prohibiting such discharge is required to effectuate the Comprehensive Plan, avoid injury to the waters of the Basin as contemplated by the Comprehensive Plan, and protect the public health and preserve the waters of the Basin for uses in accordance with the Comprehensive Plan.
(b) Prohibition. No person may discharge wastewater from high volume hydraulic fracturing or HVHF-related activities to waters or land within the Basin.
PARTS 441-499 [RESERVED]
CHAPTER VI—WATER RESOURCES COUNCIL
PART 700 [RESERVED]
PART 701—COUNCIL ORGANIZATION
Subpart A—Introduction
§ 701.1 General.
This part describes the organization established by the Water Resources Council in discharging its duties and responsibilities. The organization is designed to assure that Council Members will meet at least quarterly and consider and decide major matters before the Council. It provides that the Director can take action when necessary and appropriate; provided, that in the preparation of agenda items for the Council meetings, the Director shall consult with the Interagency Liaison Committee. It also provides that the Council Members shall be continuously advised of the significant actions of the Council staff. Council Members expect to participate personally in the work of the Council.
The Water Resources Council was established by the Water Resources Planning Act of 1965 (Pub. L. 89-80, 79 Stat. 244, as amended (42 U.S.C. 1962-1962d-5)). The rules and regulations of this part are promulgated by authority of section 402 of the Act (42 U.S.C. 1962d-1).
§ 701.3 Purpose of the Water Resources Council.
It is the purpose of the Water Resources Council to effectuate the policy of the United States in the Water Resources Planning Act (hereinafter the Act) to encourage the conservation, development, and utilization of water and related land resources of the United States on a comprehensive and coordinated basis by the Federal Government, States, localities, and private enterprise with the cooperation of all affected Federal agencies, States, local governments, individuals, corporations, business enterprises, and others concerned, within the limitations set forth in section 3 of the Act (42 U.S.C. 1962-1).
§ 701.4 Functions.
The functions of the Water Resources Council are:
(a) To maintain a continuing study and prepare periodically an assessment of the adequacy of supplies of water necessary to meet the water requirements in each water resource region in the United States and of the national interest therein.
(b) To maintain a continuing study of the relation of regional or river basin plans and programs to the requirements of larger regions of the Nation.
(c) To appraise the adequacy of administrative and statutory means for coordination and implementation of the water and related land resources policies and programs of the several Federal agencies and to make recommendations to the President with respect to Federal policies and programs.
(d) To establish, after consultation with appropriate interested Federal and non-Federal entities, and with approval of the President, principles, standards, and procedures for Federal participation in the preparation of comprehensive regional or river basin plans and for the formulation and evaluation of Federal water and related land resources projects, including primary direct navigation benefits as defined by section 7a, Pub. L. 89-670.
(e) To coordinate schedules, budgets, and programs of Federal agencies in comprehensive interagency regional or river basin planning.
(f) To carry out its responsibilities under Title II of the Act with regard to the creation, operation, and termination of Federal-State river basin commissions.
(g) To receive plans or revisions thereof submitted by river basin commissions in accordance with section 204(3) of the Act (42 U.S.C. 1962b(3)), and to review and transmit them, together with its recommendations, to the President in accordance with section 104 of the Act (42 U.S.C. 1962a-3).
(h) To assist the States financially in developing and participating in the development of comprehensive water and related land resources plans in accordance with Title III of the Act.
(i) To perform such other functions as the Council may be authorized by law, executive orders, regulations, or other appropriate instructions to perform.
(j) To take such actions as are necessary and proper to implement the Act and to carry out the functions enumerated herein.
§ 701.5 Organization pattern.
(a) The Office of the Water Resources Council is composed of the Water Resources Council, the Chairman of the Water Resources Council, the Water Resources Council Staff headed by a Director, and Field Organizations within its jurisdiction.
(b) The Water Resources Council consists of the following Members: The Secretary of Agriculture; the Secretary of the Army; the Secretary of Commerce; the Secretary of Energy; the Secretary of Housing and Urban Development; the Secretary of the Interior; the Secretary of Transportation; and the Administrator of the Environmental Protection Agency.
(c) The Chairman of the Council is designated by the President.
(d) The Water Resources Council staff is employed, assigned duties and responsibilities, and supervised by the Director.
(e) The Council Members shall establish an Interagency Liaison Committee. Task forces may be established and assigned duties by the Director with the concurrence of the Members, and/or action of the Council. Any Council Member may provide each task force with whatever representation he or she deems necessary.
(f) Field organizations are established by or operate under the Council and include field committees formerly under the Inter-Agency Committee on Water Resources and the offices of the Chairmen of Federal-State River Basin Commissions established under Title II of the Act.
§ 701.6 Location of office.
The Headquarters is located in the Washington, DC area.
Subpart B—Headquarters Organization
§ 701.51 The Council.
Decisions of the Council are made as hereinafter described in §§ 701.53 and 701.54.
§ 701.52 Definitions.
As used in this part the term Member means the Secretary of Agriculture, the Secretary of the Army, the Secretary of Commerce, the Secretary of Energy, the Secretary of Housing and Urban Development, the Secretary of the Interior, the Secretary of Transportation, and the Administrator of the Environmental Protection Agency, or Alternate appointed in accordance with § 701.53(a) when the alternate is acting for one of the above-named.
§ 701.53 Council decisions by Members.
Council decisions by Members may be made by direct vote at Council meetings or by a written communication which may provide for either a written or telephone response. Written communications shall state the time limit for voting on issues which they contain; however, extensions of time may be granted by the Director or Chairman when it is deemed necessary. Issues raised at Council meetings shall be decided by majority vote of Members present and voting. Issues identified in written communications must receive approval of all Members. If an action item does not receive approval of all Members, it will be considered as an agenda item at the next Council meeting. For purposes of this section, approval of all Members shall be defined as approval without a negative vote within the time limit for voting provided within each action memorandum. Decisions affecting the authority or responsibility of a Member, within the meaning of section 3(b) of the Act, (42 U.S.C. 1962-1(b)), can be made only with that Member’s concurrence.
(a) Each of the Members in § 701.5(b) shall designate in writing to the Chairman, with a copy to the Director, those individuals who may act as their Alternates in fulfilling the duties as a Member. Each Member shall designate one Alternate and one second Alternate to represent the Member on the Council.
(b) A quorum for the transaction of business at Council meetings shall consist of five or more Members and a majority shall consist of at least four votes.
(c) Each Member has equal responsibility and authority in all decisions and actions of the Council. Each Member may place an item on a meeting agenda or, acting through the Director, circulate in writing an item for Council action. Each Member, as well as each Associate Member and each Observer, shall have full access to all information relating to the performance of his duties and responsibilities.
(d) No vote shall be taken at Council meetings until each Member and Associate Member present has had full opportunity to express his views.
(e) Members shall meet regularly at least quarterly, upon the call of the Chairman, or when requested by a majority of Members.
(f) Matters specifically reserved for Council decision by Members are:
(1) Actions requiring Presidential action or approval.
(2) Approval of Annual Budget requests and the Annual Operating Program of the Office of the Water Resources Council.
(3) Decisions involving substantial policy issues.
(4) Delegations of authority.
(5) Determination that testimony taken or evidence received shall be taken under oath.
(6) Issuance of invitations to become Associate Members or Observers.
(7) Appointment and termination of the appointment of the Director.
§ 701.54 Interagency Liaison Committee.
There is established within the Council an Interagency Liaison Committee (hereafter referred to as ILC).
(a) The ILC shall be composed of one representative for each Member, Associate Member, and Observer. Additional agency representatives may participate in the ILC meeting whenever necessary.
(b) The chairmanship of the ILC shall rotate quarterly among the Members’ representatives. Secretarial assistance shall be the responsibility of the ILC Chairman.
(c) The function of the ILC will be to provide a forum for discussion of agenda items prior to Council meetings to advise the Director of the Members’ views on such agenda items, and with the Director, to develop the final agenda. It shall be the duty of the Director or his representative to brief the ILC on each agenda item at these meetings.
(d) The ILC may meet at other times upon the call of the Chairman or Director, to consider other items.
(e) Draft agenda items shall be submitted to ILC representatives at least 30 days prior to the Council meeting. The ILC shall meet at least 20 days prior to the Council meeting. Final Council agenda material shall be submitted to the Members at least 7 days prior to the Council meeting.
(f) All ILC meetings will be open except when privileged information is discussed. At such meetings only representatives of Members shall be present.
§ 701.55 Associate Members.
(a) The Chairman, with concurrence of the Council, may invite the heads of other Federal agencies having authorities and responsibilities relating to the work of the Council to become Associate Members. Associate Members, on the same terms and conditions as Members, may designate persons, in accordance with the same procedure identified in § 701.53(a), to serve for them as Associate Members.
(b) Associate Members may participate with Members in consideration of all matters relating to their areas of responsibility, except that their concurrence on a decision of the Council is not required.
§ 701.56 Observers.
(a) Chairmen and Vice-Chairmen of River Basin Commissions established under Title II of the Act shall be Observers.
(b) The Chairman, with the concurrence of the Council, may invite the heads of offices or other officials of the Executive Office of the President or other Federal agencies to become Observers.
(c) Observers may designate persons to attend Council meetings of Members. Observers will be furnished agenda and other materials on the same basis as Associate Members.
§ 701.57 Official decisions of the Council.
Official decisions of the Council shall be of record. Such decisions shall be recorded in accepted minutes of duly called regular or special meetings or set forth in resolutions, memoranda, or other documents approved by Members. Decisions which would affect the authority and responsibilities of heads of other Federal agencies, including Associate Members, within the meaning of section 3(b) of the Act, shall only be made during a regular or special meeting of Members and recorded in the minutes thereof.
§ 701.58 Task forces.
The Director with Council concurrence or the Council may establish task forces from time to time to aid in the preparation of issues for presentation to the Council.
(a) Any Member, Associate Member, or Observer may provide representation on each task force.
(b) The Director or the Council may designate the chairman of each task force.
(c) For each task force, the Director or the Council shall set forth the purpose and specific functions of each task force and their termination dates in establishing such task forces. Such charter documents shall also identify the relationship of each task force to functions of the Council.
(d) Each duly constituted task force will be provided administrative and secretarial support by the Water Resources Council Staff to the extent possible, directly or through arrangements with other Federal agencies.
§ 701.59 Advisory committees.
The Council may establish standing and ad hoc advisory committees. The establishment, operation, and termination of such committees shall be in accordance with the Federal Advisory Committee Act (Pub. L. 92-463) and other pertinent law and directives.
§ 701.60 Procedures for revision of rules and regulations.
Revisions proposed by the Water Resources Council Members to the Principles and Standards Manual of Procedures promulgated as rules and regulations by the Water Resources Council are to be submitted in writing by one or more Members of the Water Resouces Council to the Director, Water Resources Council, to be handled as an action item in accordance with § 701.53. Proposed revisons adopted by the Council in accordance with § 701.53 will be published in the
§ 701.71 The Chairman.
(a) The Chairman shall preside at Council Meetings of Members.
(b) The Chairman is the official spokesman of the Council and represents it in its relations with the Congress, the States, Federal agencies, persons, or the public. He shall from time to time report, on behalf of the Council, to the President. He shall keep the Council apprised of his actions under this section.
(c) The Chairman shall request the heads of other Federal agencies to participate with the Council when matters affecting their responsibilities are considered by the Council.
(d) In the case of absence, disability, or vacancy, the acting Chairman shall be, in order of precedence, as designated (1) by the President (2) by the Chairman from among the Members, or (3) by the Council from among the Members.
§ 701.76 The Water Resources Council Staff.
The Water Resources Council Staff (hereinafter the Staff) serves the Council and the Chairman in the performance of their functions and in the exercise of their authorities in accordance with the Act, the rules and regulations and other decisions of the Council, and all other laws, rules, regulations, and orders applicable to the Water Resources Council, and will be organized in accordance with a structure approved by the Council.
§ 701.77 Director—duties and responsibilities.
The Director shall serve as the principal executive officer for the Council and as the head of the staff, and shall see to the faithful execution of the policies, programs, and decisions of the Council; report thereon to the Council from time to time or as the Council may direct; administer the office and staff of the Council within the limits of the Annual Budget and the Annual Operating Program related thereto; make recommendations to the Council and the Chairman relating to the performance of their functions and the exercise of their authorities; and facilitate the work of the Council and the Chairman. His duties and responsibilities include, but are not limited to, the following:
(a) Acting for the Chairman, represents the Council in its relations with the Congress, States, Federal agencies, persons, or the public under the general supervision and direction of the Council.
(b) Establishes the line of succession as Acting Director among the other officers of the Council below the Deputy Director.
(c) Directs the Staff in its service to the Council and the Chairman in the performance of their functions and in the exercise of their authorities. The Director is responsible to the council for the organization of the Staff, employment and discharge of personnel, training and personnel development program, assignment of duties and responsibilities, and the conduct of its work.
(d) Insures that the quality of the work of the Staff in its studies, reports, and in other assignments is high that the professional integrity of its personnel is respected, and that its overall perspective and independence of judgment with regard to water and related land resources matters is approximately maintained within the context of the inter-agency, intergovernmental, and other staff collaboration that is both necessary and desirable in the fulfillment of the purpose of the Council as set forth in § 701.3.
(e) Prepares and recommends reports on legislation, Executive orders, and other documents requested of the Council.
(f) Prepares and recommends an Annual Budget request in accordance with policies, rules, and regulations applicable thereto. During its consideration by the Office of Management and Budget the President and the Congress, the Director shall seek acceptance of the proposed Annual Budget by every appropriate means. On behalf of the Council, he is authorized in his descretion to make appeals and agree to adjustments. However, to the extent that time and circumstances permit, he shall consult with and obtain the approval of the Council on all substantial appeals and adjustments.
(g) Prepares and recommends the Annual Operating Program to carry out the work of the Council, within the appropriations provided by the Congress and allowances approved by the Office of Management and Budget.
(h) Prepares and recommends proposed rules and regulations, including proposed delegations of authority, for carrying out the provisions of the Act, or other provisions of law which are administered by the Council.
(i) Prepares and recommends reports and materials for public information that are explanatory of the work and accomplishments of the Council.
(j) Appoints staff representatives to each task force established pursuant to § 701.58.
(k) Establishes and enforces administrative rules and regulations pertaining to the Staff consistent with applicable laws, Executive Orders, Budget Circulars, and other regulations and orders.
(a) Under the authority of section 403 of the Act (42 U.S.C. 1962d-2), the Director is delegated authority to:
(1) Hold hearings, sit and act at such times and places, take such testimony, receive such evidence, and print or otherwise reproduce and distribute so much of its proceedings and reprints thereon as he may deem advisable.
(2) Acquire, furnish, and equip such office space as is necessary.
(3) Use the U.S. mails in the same manner and upon the same conditions as other departments and agencies of the United States.
(4) Employ and fix compensation of all personnel as the Director deems advisable in accordance with the civil service laws and the Classification Act of 1949, as amended; assign duties and responsibilities among such personnel and supervise personnel so employed.
(5) Procure services as authorized by section 15 of the Act of August 2, 1946 (5 U.S.C. 3109), at rates not in excess of the daily equivalent of the rate prescribed for grade GS-18 under section 5332 of Title 5 of the United States Code in the case of individual experts or consultants.
(6) Purchase, hire, operate, and maintain passenger motor vehicles.
(7) Utilize and expend such funds as are deemed advisable for proper administration of the authorities delegated herein. However, contract and individual modifications there of in excess of $100,000 or which involve significant policy decisions shall be submitted to the Council for approval before execution.
(8) Request any Federal department or agency (i) to furnish to the Council such information as may be necessary for carrying out its functions and as may be available to or procurable by such department or agency, and (ii) to detail personnel to temporary duty with the Council on a reimbursable basis.
(9) Make available for public inspection during ordinary office hours all appropriate records and papers of the Council.
(10) Compute and certify for payment funds to the States in accordance with standards and formula approved by the Council, and perform related functions of the Council contained in section 305 of the Act.
(11) Serve as a duly authorized representative of the Chairman of the Council for the purpose of audit and examination of any pertinent books, documents, papers, and records of the recipient of a grant under Title III of the Act, and recommend to the Chairman the appointment of further representatives as may be necessary for such function.
(12) Review, for compliance, State programs approved under Title III; conduct full inquiries as the Council may direct; and recommend for Council decision such withholding or reinstatement of payments as is appropriate and authorized by section 304 of the Act.
(13) Serve as the “responsible agency official” under part 705 of these rules and regulations.
(b) The authorities delegated in this section may be redelegated by the Director to the extent determined by him to be necessary and desirable for proper administration.
§ 701.79 Selection policy for professional personnel.
In the selection for employment of the professional staff as a whole, the Director shall be guided by the following criteria:
(a) Outstanding character and competence—both personal and professional.
(b) Spread and balance of training and experience in the several relevant professions—ecology; economics; economic geography; engineering; fish and wildlife biology; forestry; hydrology; irrigation; landscape architecture; law; political science; recreation; sanitary engineering; soil conservation; urban and other land planning; etc.
(c) Diversity of prior identification and experience, both planning and operating in Washington and in the field; including personnel with prior identification and experience with Federal, State, or local government, private enterprise, or university teaching and research.
Subpart C—Field Organization
§ 701.100 Field Directors.
The Council may employ as professional staff Field Directors who shall be designated as chairmen of committees or groups established by the Council to develop and prepare regional or river basin assessments or plans. Such Field Directors shall perform their official functions at locations established by the Council.
§ 701.101 Field committees.
The Council may establish or continue already established regional committees to carry out assigned functions at field level.
§ 701.102 Existing committees.
Field Committees operating under the Water Resources Council (formerly under the Inter-Agency Committee on Water Resources) are as follows:
Subpart D—Availability of Information
§ 701.200 Statement of policy.
Water Resources Council records and informational materials are available to the fullest extent possible consistent with 5 U.S.C. 552, as amended, and will be promptly furnished to any member of the public.
§ 701.201 Availability of records and informational materials.
(a) Except for records and materials exempted from disclosure pursuant to paragraph (b) of this section, any person may inspect and copy any document in the possession and custody of the Water Resources Council in accordance with the procedure provided in § 701.202.
(b) The provisions of 5 U.S.C. 552 which require that agencies make their records available for public inspection and copying do not apply to matters which are:
(1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and
(ii) Are in fact properly classified pursuant to such Executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Investigatory records compiled for law enforcement purposes but only to the extent that the production of such records would (i) interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) constitute an unwarranted invasion of personal privacy, (iv) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (v) disclose investigative techniques and procedures, or (vi) endanger the life or physical safety of law enforcement personnel;
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
§ 701.202 Procedure for requests for information.
(a) A member of the public who requests records or materials from the Water Resources Council must provide a reasonable description of the records or materials sought so that such records or materials may be located without undue search or inquiry.
(b) Requests which reasonably describe the records or materials sought should be directed to the Public Information Officer, Water Resources Council, Suite 800, 2120 L Street NW., Washington, DC 20037.
(c) To insure that requests for information are processed as expeditiously as possible, all Freedom of Information Act (FOIA) requests should be clearly identified by the requester as such on the envelope and in the letter.
(d) Records or materials will be available for inspection and copying in person during normal business hours or by mail.
(e) Requests for records which originate in or concern matters which originate in another department or agency may be forwarded to the department or agency primarily concerned and the requester so notified.
§ 701.203 Schedule of fees.
(a) The Public Information Officer will to the extent practicable, encourage the widest possible distribution of information by permitting requests for inspection or copies of records or materials to be met without cost to the person making the request.
(b) Fees will be charged in the case of requests which are determined by the Public Information Officer to involve a burden on staff or facilities significantly in excess of that normally accepted by the Council in handling routine requests for information.
(c) In all instances where the Public Information Officer determines that a request for information can be considered as primarily benefiting the general public (despite a § 701.203 determination of burden), such request shall be met either without cost wherever practicable or at a reduced cost to the requester. Any such reduction shall be determined by the Public Information Officer on the basis of the balance between the benefit to the general public and the cost to the Water Resources Council.
(d) Fees shall be limited to recovery of only direct costs of search and duplication but in no event shall the fee for search and duplication exceed $2.50 per half hour, nor shall the fee for copying exceed $0.25 per page (maximum per page dimension of 8 × 14 inches).
(e) Unless a request for information specifically states that whatever cost is involved will be acceptable, or acceptable up to a specified limit that covers anticipated costs, a request that is expected to involve an assessed fee in excess of $50.00 will not be deemed to have been received until the requester is advised promptly upon physical receipt of the request of the anticipated cost and agrees to bear it.
(f) When anticipated fees exceed $50.00, a deposit for 25% of the amount must be made within 10 days of the notice to the requester of the initial determination.
(g) The Council reserves the right to limit the number of copies of any document that will be provided to any one person.
§ 701.204 Time limits for WRC initial determinations regarding requests for information.
(a) An initial determination to grant or deny each request for information will be made within ten (10) working days of receipt of such request.
(b) The requester shall be notified immediately of the initial determination and the reasons therefor.
(c) The Public Information Officer will make initial determinations to grant requests for information.
(1) In those instances where the initial determination by the Public Information Officer is to grant the request and the information is immediately supplied such action will serve as both notice of determination and compliance with the request.
(2) In those instances where the initial determination by the Public Information Officer is to grant the request, but the information is not immediately available, the Public Information Officer will send immediate notice of the determination to comply, and the approximate date the information will be forwarded.
(d) The Public Information Officer will make initial determination to deny the requests only with the concurrence of the General Counsel. The requester shall be notified immediately of the initial adverse determination, the reasons therefor, and the right to appeal the initial adverse determination to the Director.
§ 701.205 Time limit for requester to appeal an initial adverse determination.
(a) The requester shall have thirty (30) calendar days to file with the Director an appeal from an initial adverse determination. The appeal must be in writing.
(b) The thirty (30) day period of appeal shall run from receipt of the initial adverse determination (in cases of denials of an entire request) and from receipt of any records being made available pursuant to the initial adverse determination (in cases of partial denials).
§ 701.206 Time limit for WRC final determinations regarding requests for information appealed by the requester from an initial adverse determination.
The Director shall make a final determination with respect to any appeal within twenty (20) working days after receipt of such appeal. If the initial adverse determination is in whole or in part upheld by the Director, the requester shall be notified of the final adverse determination and the provisions for judicial review of that determination as stated in the Freedom of Information Act, as amended (see 5 U.S.C. 552(a)(4) et seq.; as amended by Pub. L. 93-502).
§ 701.207 Extension of time limits for WRC initial and final determinations.
(a) In unusual circumstances, as specified in this section, the time limits prescribed in either § 701.203 or § 701.204 may be extended by written notice from the responsible WRC official (i.e., the Public Information Officer in instances of initial requests and the Director in instances of appeals) to the requester setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten (10) working days, and in no event shall the total extended time exceed ten (10) working days with respect to a particular request.
(b) As used in this section, unusual circumstances means, but only to the extent reasonably necessary to the proper processing of the particular request:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
§ 701.208 WRC petition for judicial extension of time.
The provisions of § 701.206 notwithstanding, the Director may petition for judicial extension of time when exceptional circumstances warrant such action.
§ 701.209 River basin commissions and field committees.
(a) River basin commissions established pursuant to Title II of the Water Resources Planning Act are encouraged to establish, pursuant to section 205(c) of that Act, procedures for public availability of information that are consistent with 5 U.S.C. 552, as amended, and this subpart.
(b) Field committees will be governed by the procedures adopted by the lead Federal agency to implement 5 U.S.C. 552, as amended; except that if the lead agency of a field committee is a non-Federal entity, the standards of this subpart shall apply.
(c) Requests for documents and informational materials may be made to the chairmen of the field committees and river basin commissions at the following addresses.
(1) River Basin Commissions:
(2) Field Committees:
Subpart E—Protection of Privacy
§ 701.300 Purpose and scope.
(a) The purpose of this subpart is to set forth rules to inform the public about information maintained by the U.S. Water Resources Council relating to identifiable individuals and to inform those individuals how they may gain access to and correct or amend information about themselves.
(b) The regulations in this subpart implement the requirements of the Privacy Act of 1974 (Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C. 552a)).
(c) The regulations in this subpart apply only to records disclosed or requested under the Privacy Act of 1974, and not requests for information made pursuant to the Freedom of Information Act, as amended (5 U.S.C. 552, as amended by Pub. L. 93-502).
§ 701.301 Definitions.
For the purposes of this subpart, unless otherwise required by the context:
(a) Council means the U.S. Water Resources Council;
(b) Individual means a citizen of the United States or an alien lawfully admitted for permanent resident;
(c) Maintain means maintain, collect, use or disseminate;
(d) Record means any item, collection, or grouping of information about an individual that is maintained by the Council, including, but not limited to, his education, financial transactions, medical history and criminal or employment history, and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;
(e) Adverse determination means a decision by the proper Council official to deny, in whole or in part, a request from an individual for a correction or amendment of a record concerning the individual and maintained by the Council; and
(f) Record system means system of records as defined in the Act, i.e., a group of any records under the control of the Council from which information is retrieved by the name of the individual or by some identifying particular assigned to the individual.
§ 701.302 Procedures for notification of existence of records pertaining to individuals.
(a) The systems of records, as defined in the Privacy Act of 1974, maintained by the Council are listed annually in the
(b) An individual who believes that the Council maintains records pertaining to him or her but who cannot determine which records system contains those records, may request assistance by mail or in person at the Division of Program Coordination and Management, 2120 L Street, NW., Washington, DC 20037, during business hours (8:00
(c) The Council will attempt to respond to a request as to whether a record exists within 10 working days from the time it receives the request or to inform the requestor of the need for additional time or additional information within 10 working days. If a request is complied with within 10 working days, no separate acknowledgment will be made.
§ 701.303 Conditions of disclosure.
(a) Subject to the conditions of paragraphs (b) and (c) of this section, the Council will not disclose any record which is contained in a system of records, by any means of communication to any person who is not an individual to whom the record pertains.
(b) Upon written request or with prior written consent of the individual to whom the record pertains, the Council may disclose any such record to any person or other agency.
(c) In the absence of a written consent from the individual to whom the record pertains, the Council may disclose any such record provided such disclosure is:
(1) To those officers and employees of the Council who have a need for the record in the performance of their duties;
(2) Required under the Freedom of Information Act (5 U.S.C. 552);
(3) For a routine use compatible with the purpose for which it was collected;
(4) To the Bureau of Census for purposes of planning or carrying out a census or survey or related activity under the provisions of Title 13 of the United States Code;
(5) To a recipient who has provided the Council with adequate advance written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value;
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity authorized by law: Provided, The head of the agency or instrumentality has made a prior written request to the Assistant Director Program Coordination and Management specifying the particular record and the law enforcement activity for which it is sought;
(8) To a person pursuant to a showing of compelling circumstance affecting the health or safety of an individual: Provided, That upon such disclosure notification is transmitted to the last known address of such individual (and see § 701.306);
(9) To either House of Congress, and to the extent of a matter within its jurisdiction, any committee or subcommittee, or joint committee of Congress;
(10) To the Comptroller General, or any of his authorized representatives in the course of the performance of the duties of the GAO; or
(11) Under an order of a court of competent jurisdiction.
§ 701.304 Procedures for identification of individuals making requests.
(a) Each individual requesting the disclosure of a record or copy of a record will furnish the following information with his or her request:
(1) The name of the record system containing the record;
(2) Proof as described in paragraph (b) of this section that he or she is the individual to whom the requested record relates; and
(3) Any other information required by the notice describing the record system.
(b) Proof of identity as required by paragraph (a)(2) of this section will be provided as described in paragraph (b)(1) and (2) of this section. Requests made by an agent, parent, or guardian will include the authorization described in § 701.310(a) and (b).
(1) Requests made in writing will include a statement, signed by the individual and properly notarized, that he or she appeared before a notary public and submitted proof of identification in the form of a drivers license, birth certificate, passport or other identification acceptable to the notary public. In any case in which, because of the extreme sensitivity of the record sought to be seen or copied, the agency determines that the identification is not adequate, it may request the individual to submit additional proof of identification.
(2) If the request is made in person, the requester will submit proof of identification similar to that described in paragraph (b)(1) of this section, acceptable to the Council.
§ 701.305 Procedures for requests for access to or disclosure of records pertaining to individuals.
(a) After being informed by the Council that a system of records contains a record pertaining to him or her, an individual may request the Council for access to or disclosure of that record to him or her in the manner described in this section. Each such request of a record or a copy of it will be made at the place specified in the notice describing that system of records, either in writing or in person. Requests may be made by agents, parents, or guardians of individuals as described in § 701.310(a) and (b).
(b) The request for access to or disclosure of a record should specifically identify the systems of records involved.
(c) The Council will attempt to affirm or deny a request within 10 working days from the time it receives the request or to inform the requester of the need for additional time, additional information, identification, or the tendering of fees (as specified in § 701.312), within 10 working days; except that if the request for access was not preceded by a notification request as provided in § 701.302, then the 10-day period will not begin until after such time as it has been determined that the record exists. If a request is complied with within 10 working days, no separate acknowledgement will be made.
§ 701.306 Special procedure: Medical records.
(a) An individual requesting disclosure of a record which contains medical or psychological information may name a medical doctor or other person to act as his agent as described in § 701.310(a). Records containing medical or psychological information may be disclosed to that agent rather than to the individual at the individual’s request.
(b) If the individual has not named a medical doctor as agent, the Council may determine, after consultation with a medical doctor, that disclosure of the information would have an adverse effect on the requester. The Council may then disclose that information to a medical doctor specified by the individual, rather than to that individual, either in person or by mail.
§ 701.307 Request for correction or amendment to record.
(a) Any individual who has reviewed a record pertaining to him that was furnished to him under this subpart, may request the agency to correct or amend all or any part of that record.
(b) Each individual requesting a correction or amendment will send the request to the agency official who furnished the record to him.
(c) Each request for a correction or amendment of a record will contain the following information:
(1) The name of the individual requesting the correction or amendment;
(2) The name of the system of records in which the record sought to be corrected or amended is maintained;
(3) The location of that record in the system of records;
(4) A copy of the record sought to be corrected or amended or a description of that record;
(5) A statement of the material in the record requested to be corrected or amended;
(6) A statement of the specific wording of the correction or amendment sought; and
(7) A statement of the basis for the requested correction or amendment, including any material that the individual can furnish to substantiate the reasons for the correction or amendment sought.
§ 701.308 Council review of request for correction or amendment of record.
(a) Not later than 10 days (excluding Saturdays, Sundays, and legal holidays) after the receipt of the request for the correction or amendment of a record under § 701.307, the Council will acknowledge receipt of the request and inform the individual whether further information is required before the correction or amendment can be considered.
(b) The Council will promptly review the request and either make the requested correction or amendment or notify the individual of the initial adverse determination, including in the notification the reasons for the adverse determination and the appeal procedure provided by § 701.309.
(c) The Assistant Director, Program Coordination and Management, or his designee, will, after consulting with the General Counsel, or his designee, have the primary authority to make an initial adverse determination.
(d) The Council will make each requested correction or amendment to a record if that correction or amendment will correct anything that is not accurate, relevant, timely, or complete, within the record.
(e) If the requested correction or amendment to a record is agreed to by the Council, the Council will, within 30 working days:
(1) Advise the individual;
(2) Correct the record accordingly; and
(3) Where an accounting of disclosures had been made (as provided in § 701.311), advise all previous recipients (including the individual) of the record of the fact that the correction was made and the substance of the correction.
§ 701.309 Appeal of initial adverse determination.
(a) Any individual whose request for a correction or amendment, requested by him, to a record has been denied, in whole or in part, may appeal that decision to the Director of the Council.
(b) The appeal will be in writing and will:
(1) Name the individual making the appeal;
(2) Identify the record sought to be amended;
(3) Name the record system in which that record is contained;
(4) Contain a short statement describing the amendment sought; and
(5) State the name and location of the Council official who made the initial adverse determination.
(c) Not later than 30 days (excluding Saturdays, Sundays, and legal holidays) after the date on which the Council received the appeal, the Director will complete his review of the appeal and make a final decision thereon. However, for good cause shown, the Director may extend that 30 day period by not more than an additional 30 working days. If the Director so extends the period, he will promptly notify the individual requesting the review that the extension has been made and the reasons therefor.
(d) After review of an appeal request, the agency will send a written notice to the requester containing the following information:
(1) The decision and, if the denial is upheld, the reasons for the decision; and
(2) The specific civil remedies available to the requester as per section 2(g) of Pub. L. 93-579, as well as notice that additional remedies may be appropriate and available to enable the full exercise of the requester’s rights at law.
(3) The right to file with the Council a concise statement setting forth the requester’s reasons for disagreement with the Council’s refusal to correct or amend the record.
§ 701.310 Disclosure of record to person other than the individual to whom it pertains.
(a) Any individual who desires to have a record covered by this subpart disclosed to or mailed to a person other than that individual may authorize that person to act as his agent for that specific purpose. The authorization will be in writing, signed by the individual, and will be notarized. The agent will submit with the authorization proof of the individual’s identity as required by § 701.304(b).
(b) The parent of any minor individual or the legal guardian of any individual who has been declared by a court of competent jurisdiction to be incompetent due to physical or mental incapacity or age, may act on behalf of that individual in any matter covered by this subpart. A parent or guardian who desires to act on behalf of such an individual will present suitable evidence of parentage or guardianship, by birth certificate, certified copy of a court order, or similar documents, and proof of the individual’s identity in a form that complies with § 701.304(b).
(c) An individual to whom a record is to be disclosed in person pursuant to this subpart, may have a person of his own choosing accompany the individual when the record is disclosed.
§ 701.311 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to any person, or to another agency, under any of the provisions of § 701.303 except § 701.303(c)(1) and (2), an accounting will be made.
(2) The accounting will record (i) the date, nature, and purpose of each disclosure of a record to any person or to another agency and (ii) the name and address of the person or agency to whom the disclosure was made.
(3) Accountings prepared under this section will be maintained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made.
(b) Access to accounting. (1) Except for accounting of disclosures made under § 701.303(c)(1) and (2), accountings of all disclosures of a record will be made available to the individual to whom the record relates at his or her request.
(2) An individual desiring access to accountings of disclosures of a record pertaining to him or her will submit his request by following the procedures of § 701.305.
(c) Notification of disclosure. When a record is disclosed pursuant to § 701.303(c)(11) as the result of the order of a court of competent jurisdiction, reasonable efforts will be made to notify the individual to whom the record pertains as soon as the order becomes a matter of public record.
§ 701.312 Fees.
(a) The Council will not charge an individual for the costs of making a search for a record or the costs of reviewing the record. When the Council makes a copy of a record as a necessary part of the process of disclosing the record to an individual, the Council will not charge the individual for the cost of making that copy.
(b) If an individual requests the Council to furnish him with a copy of the record (when a copy has not otherwise been made as a necessary part of the process of disclosing the record to the individual), the Council will charge a maximum fee of $0.25 per page (maximum per page dimension of 8 × 14 inches) to the extent that the request exceeds $5.00 in cost to the Council. Requests not exceeding $5.00 in cost to the Council will be met without cost to the requester.
§ 701.313 Penalties.
Title 18 U.S.C. 1001, Crimes and Criminal Procedures, makes it a criminal offense, subject to a maximum fine of $10,000 or imprisonment for not more than 5 years or both, to knowingly and willfully make or cause to be made any false or fraudulent statements or representations in any matter within the jurisdiction of any agency of the United States. Section 552a(i)(3) of the Privacy Act (5 U.S.C. 552a(i)(3)) makes it a misdemeanor, subject to a maximum fine of $5,000, to knowingly and willfully request or obtain any record concerning an individual under false pretenses. Section 552a(i)(1) and (2) of the Privacy Act (5 U.S.C. 552a(i)(1) and (2) provide penalties for violations by agency employees of the Privacy Act or regulations established thereunder.
§ 701.314 Exemptions.
No Council records system or systems are exempted from the provisions of 5 U.S.C. 552a as permitted under certain conditions by 5 U.S.C. 552a(j) and (k).
PART 704—PLAN FORMULATION STANDARDS AND PROCEDURES
Subparts A-D [Reserved]
Subpart E—Standards for Plan Formulation and Evaluation
§ 704.39 Discount rate.
(a) The interest rate to be used in plan formulation and evaluation for discounting future benefits and computing costs, or otherwise converting benefits and costs to a common time basis, shall be based upon the average yield during the preceding fiscal year on interest-bearing marketable securities of the United States which, at the time the computation is made, have terms of 15 years or more remaining to maturity: Provided, however, That in no event shall the rate be raised or lowered more than one-quarter of 1 percent for any year. The average yield shall be computed as the average during the fiscal year of the daily bid prices. Where the average rate so computed is not a multiple of one-eighth of 1 percent, the rate of interest shall be the multiple of one-eighth of 1 percent nearest to such average rate.
(b) The computation shall be made as of July 1 of each year, and the rate thus computed shall be used during the succeeding 12 months. The Executive Director shall annually request the Secretary of the Treasury to inform the Water Resources Council of the rate thus computed.
(c) Subject to the provisions of paragraphs (d) and (e) of this section, the provisions of paragraphs (a) and (b) of this section shall apply to all Federal and federally assisted water and related land resources project evaluation reports submitted to the Congress, or approved administratively, after the close of the second session of the 90th Congress.
(d) Where construction of a project has been authorized prior to the close of the second session of the 90th Congress, and the appropriate State or local governmental agency or agencies have given prior to December 31, 1969, satisfactory assurances to pay the required non-Federal share of project costs, the discount rate to be used in the computation of benefits and costs for such project shall be the rate in effect immediately prior to the effective date of this section, and that rate shall continue to be used for such project until construction has been completed, unless the Congress otherwise decides.
(e) Notwithstanding the provisions of paragraphs (a) and (b) of this section, the discount rate to be used in plan formulation and evaluation during the remainder of the fiscal year 1969 shall be 4
(f) Section V. G. 2 of the interagency agreement dated May 15, 1962, approved by the President on May 15, 1962, entitled “Policies, Standards, and Procedures in the Formulation, Evaluation, and Review of Plans for Use and Development of Water and Related Land Resources,” and published on May 29, 1962, as Senate Document No. 97, 87th Congress, 2d Session, is superseded by the provisions of this section.
PART 705—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS—EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
§ 705.1 Purpose.
The purpose of this subpart is to implement the provisions of Title VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to as the “Act”), to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity receiving Federal financial assistance from the Water Resources Council.
§ 705.2 Definitions.
As used in this part:
(a) Applicant means one who submits an application, request, or plan required to be approved by the Water Resources Council, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term application means such an application, request, or plan.
(b) Facility includes all or any part of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.
(c) Federal financial assistance includes:
(1) Grants and loans of Federal funds;
(2) The grant or donation of Federal property and interests in property;
(3) The detail of Federal personnel;
(4) The sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient; and
(5) Any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(d) Primary recipient means any recipient that is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program.
(e) Program includes any program, project, or activity for the provision of services, financial aid, or other benefits to individuals (including education or training, health, welfare, rehabilitation, housing, or other services, whether provided through employees of the recipient of Federal financial assistance or provided by others through contracts or other arrangements with the recipient, and including work opportunities), or for the provision of facilities for furnishing services, financial aid or other benefits to individuals. The services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any services, financial aid, or other benefits provided with the aid of Federal financial assistance or the aid of any non-Federal funds, property, or other resources required to be expended or made available for the program to meet matching requirements or other conditions which must be met in order to receive the Federal financial assistance, and to include any services, financial aid, or other benefits provided in or through a facility provided with the aid of Federal financial assistance or such non-Federal resources.
(f) Recipient may mean any State, territory, possession, the District of Columbia, or Puerto Rico, or any political subdivision thereof, or instrumentality thereof, any public or private agency, institution, or organization, or other entity, or any individual, in any State, territory, possession, the District of Columbia, or Puerto Rico, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assignee, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.
(g) Responsible agency official means the Director of the Water Resources Council or his designee.
§ 705.3 Application of this part.
This part applies to any program for which Federal financial assistance is authorized under a law administered by the Water Resources Council. It applies to money paid, property transferred, or other Federal financial assistance extended under any such program after the date of this part pursuant to an application whether approved before or after such date. This part does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, or (b) any employment practice except to the extent described in § 705.4(c).
§ 705.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under, any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient under any program to which this part applies may not directly or through contractual or other arrangements, on the grounds of race, color, or national origin:
(i) Deny a person any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to a person which is different, or is provided in a different manner, from that provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(v) Treat a person differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership, or other requirement or condition which persons must meet in order to be provided any service, financial aid, or other benefit provided under the program; or
(vi) Deny a person an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program.
(vii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of persons to whom, or the situations in which, such services, financial aid, other benefits, or facilties will be provided under any such program, or the class of persons to be afforded an opprotunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin.
(3) As used in this section, the services, financial aid, or other benefits provided under a program receiving Federal financial assistance include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(4) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.
(5) This part does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color, or national origin. When previous discriminatory practice or usage tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this part applies, the applicant or recipient has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purposes of the Act.
(c) Employment practices. (1) Where a primary objective of a program of Federal financial assistance to which this part applies is to provide employment, a recipient or other party subject to this part shall not, directly or through contractual or other arrangements, subject a person to discrimination on the grounds of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, hiring, firing, upgrading, promotion, demotion, transfer, layoff, termination, rates of pay or other forms of compensation or benefits, selection for training or apprenticeship, use of facilities, and treatment of employees). Such recipient shall take affirmative action to insure that applicants are employed, and employees are treated during employment, without regard to their race, color, or national origin. The requirements applicable to construction employment under any such program shall be those specified in or pursuant to part III of Executive Order 11246 or any Executive Order which supersedes it.
(2) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the grounds of race, color, or national origin in the employment practices of the recipient or other persons subject to the regulation tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the provisions of paragraph (c)(1) of this section shall apply to the employment practice of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.
(d) Location of facilities. A recipient may not make a selection of a site or location of a facility if the purpose of that selection, or its effect when made, is to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this rule applies, on the grounds of race, color, or national origin; or if the purpose is to, or its effect when made will, substantially impair the accomplishment of the objectives of this part.
§ 705.5 Assurance required.
(a) General. Every application for Federal financial assistance to carry out a program to which this part applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. In the case of an application for Federal financial assistance to provide real property or structures thereon, or personal property or equipment of any kind, such assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the property is used for a purpose for which the Federal financial assistance is extended or for any other purpose involving the provisions of similar services or benefits. In all other cases, such assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible agency official shall specify the form of the foregoing assurances for each program, and the extent to which like assurances will be required of subgrantees, contractors, and subcontractors, transferees, successors in interest, and other participants in the program. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(b) Planning grants to States. Each designated State agency must submit the assurance specified in § 703.5(n) of these rules and regulations.
(c) River basin commissions. Each river basin commission is required to submit, along with its annual budget request, written assurance of its continuing compliance with § 705.4 of this part.
§ 705.6 Compliance information.
(a) Cooperation and assistance. The responsible agency official shall, to the fullest extent practicable, seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and submit to the responsible agency official timely, complete, and accurate compliance reports at such times, and in such form and containing such information, as the responsible agency official may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. In the case of any program under which a primary recipient extends Federal financial assistance to any other recipient or subcontracts with any other person or group, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.
(c) Access to sources of information. Each recipient shall permit access by the responsible agency official during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities, as may be pertinent to ascertain compliance with this part. Whenever any information required of a recipient is in the exclusive possession of any other agency, institution, or person and that agency, institution, or person fails or refuses to furnish that information, the recipient shall so certify in its report and set forth the efforts which it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the program under which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible agency official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
§ 705.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official shall from time to time review the practices of recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible agency official a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible agency official.
(c) Investigations. The responsible agency official will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation should include, whenever appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the responsible agency official will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 705.8.
(2) If an investigation does not warrant action pursuant to subparagraph (1) of this paragraph, the responsible agency official will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purpose of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
§ 705.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this part and if the noncompliance or threatened noncompliance cannot be corrected by informal means, the responsible agency official may suspend or terminate, or refuse to grant or continue, Federal financial assistance, or use any other means authorized by law, to induce compliance with this part. Such other means include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.
(b) Noncompliance with assurance requirement. If an applicant or recipient fails or refuses to furnish an assurance required under § 705.5 or fails or refuses to comply with the provisions of the assurance it has furnished, or otherwise fails or refuses to comply with any requirement imposed by or pursuant to Title VI or this part, Federal financial assistance may be suspended, terminated, or refused in accordance with the procedures of Title VI and this part. The Water Resources Council shall not be required to provide assistance in such a case during the pendency of administrative proceedings under this part, except that the Council will continue assistance during the pendency of such proceedings whenever such assistance is due and payable pursuant to a final commitment made or an application finally approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating, or refusing to grant or continue Federal financial assistance shall become effective until:
(1) The responsible agency official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means;
(2) There has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part;
(3) The action has been approved by the Chairman of the Water Resources Council pursuant to § 705.10(e); and
(4) The expiration of 30 days after the responsible agency official has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance with Title VI of the Act by any other means authorized by law shall be taken until:
(1) The responsible agency official has determined that compliance cannot be secured by voluntary means;
(2) The recipient or other person has been notified or its failure to comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days, additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.
§ 705.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 705.8(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible agency official that the matter be scheduled for heaing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this paragraph or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 705.8(c) and consent to the making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices of the Water Resources Council in Washington, DC, at a time fixed by the responsible agency official unless it determines that the convenience of the applicant or recipient or of the Council requires that another place be selected. Hearings shall be held before the responsible agency official or at its discretion, before a hearing examiner appointed in accordance with section 3105 of Title 5, U.S.C., or detailed under section 3344 of Title 5, U.S.C.
(c) Right to counsel. In all proceedings under this section, the applicant or recipient and the Water Resources Council shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with the Administrative Procedure Act (5 U.S.C. 554-557) and with such other regulations that may be necessary or appropriate for the conduct of hearings pursuant to this part.
(2) Technical rules of evidence do not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more programs to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under Title VI of the Act, the responsible agency official may, by agreement with such other departments or agencies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules or procedures not inconsistent with this part. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with § 705.10.
§ 705.10 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is held by a hearing examiner, the hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the responsible agency official for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient. Where the initial decision is made by the hearing examiner, the applicant or recipient may, within 30 days after the mailing of such notice of initial decision, file with the responsible agency official his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the responsible agency official may, on his own motion, within 45 days after the initial decison, serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of notice of review, the responsible agency official shall review the initial decision and issue his own decision thereon including the reasons therefor. In the absence of either exceptions or a notice or review the initial decision shall, subject to paragraph (e) constitute the final decision of the responsible agency official.
(b) Decisions on record or review by the responsible agency official. Whenever a record is certified to the responsible agency official for decision or its reviews the decision of a hearing examiner pursuant to paragraph (a) of this section or whenever the responsible agency official conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with it briefs or other written statements of its contentions and a written copy of the final decision of the responsible agency official shall be sent to the applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 705.9, a decision shall be made by the responsible agency official on the record and a written copy of such decision shall be sent to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the responsible agency official shall set forth his or its ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.
(e) Approval by the Chairman. Any final decision by the responsible agency official provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under this part or the Act, shall promptly be transmitted to the Chairman of the Water Resources Council, who may approve such decision, may vacate it, or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, under the program involved, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no Federal financial assistance will thereafter be extended under such programs to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and satisfies the responsible agency official that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part.
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible agency official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible agency official determines that those requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible agency official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes the responsible agency official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record. The applicant or recipient will be estored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1). While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
§ 705.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
§ 705.12 Effect on other regulations.
(a) Nothing in this part shall be deemed to supersede any other order, regulation, or instruction which prohibits discrimination on the grounds of race, color, or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground.
(b) Forms and instructions. The responsible agency official shall issue and promptly make available to all interested persons forms and detailed instructions and procedures for effectuating this part as applied to programs to which this part applies and for which he is responsible.
(c) Supervision and coordination. The responsible agency official may from time to time assign to officials of other departments or agencies of the Government with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this part (other than responsibility for final decision as provided in § 705.10), including the achievement of effective coordination and maximum uniformity within the Water Resources Council and within the Executive Branch of the Government in the application of Title VI and this part to similar programs and in similar situations. Any action, taken, determination made, or requirements imposed by an official of another department or agency acting pursuant to an assignment of responsibility under this paragraph shall have the same effect as though such action had been taken by the responsible agency official.
PART 706—EMPLOYEE RESPONSIBILITIES AND CONDUCT
Subpart A—General Provisions
§ 706.101 Purpose.
The maintenance of unusually high standards of honesty, integrity, impartiality, and conduct by employees and special Government employees is essential to assure the proper performance of the Water Resources Council’s (hereafter referred to as the Council) business and the maintenance of confidence by citizens in their Government. The avoidance of misconduct and conflicts of interest on the part of employees and special Government employees through informed judgment is indispensable to the maintenance of these standards. To accord with these concepts, this part sets forth the Council’s regulations prescribing standards of conduct and responsibilities and governing statements of employment and financial interests for employees and special Government employees.
§ 706.102 Definitions.
In this part:
(a) Employee means the Director and an employee of the Council employed by the Director under the authority of § 701.78(a)(4) of this chapter.
(b) Special Government employee means a special Government employee as defined in section 202 of Title 18 of the United States Code who is employed by the Council.
§ 706.103 Remedial action.
(a) A violation of this part by an employee or special Government employee may be cause for remedial action. Remedial action may include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government employee of his conflicting interest;
(3) Disciplinary action which may be in addition to any penalty prescribed by law; or
(4) Disqualification for a particular assignment.
(b) Remedial action, whether disciplinary or otherwise, shall be effected in accordance with any applicable laws, Executive orders, and regulations.
§ 706.104 Interpretation and advisory service.
The General Counsel will serve as Counselor for the purpose of providing interpretation and advisory assistance to the Council staff on matters covered in this part 706.
Subpart B—Conduct and Responsibilities of Employees
§ 706.201 Proscribed actions.
An employee shall avoid any action which might result in, or create the appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a Government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity of the Government.
§ 706.202 Gifts, entertainment, and favors.
(a) Except as provided in paragraphs (b) and (c) of this section, an employee shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or financial relations with the Council;
(2) Conducts operations or activities that are regulated by the Council; or
(3) Has interests that may be substantially affected by the performance or nonperformance of his official duty.
(b) The restrictions set forth in paragraph (a) of this section do not apply to:
(1) Obvious family or personal relationships, such as those between the employee and his parents, children, or spouse, when the circumstances make it clear that those relationships rather than the business of the persons concerned are the motivating factors;
(2) The acceptance of food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon or dinner meeting or other meeting or on an inspection tour where an employee may be properly in attendance;
(3) The acceptance of loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees, such as home mortgage loans; and
(4) The acceptance of unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars, and other items of nominal intrinsic value.
(c) An employee shall not solicit a contribution from another employee for a gift to an official superior, make a donation as a gift to an official superior, or accept a gift from an employee receiving less pay than himself (5 U.S.C. 7351). However, this paragraph does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, or retirement.
(d) An employee shall not accept a gift, present, decoration, or other thing from a foreign government unless authorized by Congress as provided by the Constitution and in 5 U.S.C. 7342.
(e) Neither this section nor § 706.203 precludes an employee from receipt of bona fide reimbursement, unless prohibited by law, for expenses of travel and such other necessary subsistence as is compatible with this part for which no Government payment or reimbursement is made. However, this paragraph does not allow an employee to be reimbursed, or payment to be made on his behalf, for excessive personal living expenses, gifts, entertainment, or other personal benefits, nor does it allow an employee to be reimbursed by a person for travel on official business under Council orders when reimbursement is proscribed by Decision B-128527 of the Comptroller General dated March 7, 1967.
§ 706.203 Outside employment and activity.
(a) An employee shall not engage in outside employment or other outside activity not compatible with the full and proper discharge of the duties and responsibilities of his Government employment. Incompatible activities include, but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or any other thing of monetary value in circumstances wherein acceptance may result in, or create the appearance of, a conflict of interest;
(2) Outside employment or activity which tends to impair his mental or physical capacity to perform the duties and responsibilities of his position in an acceptable manner;
(3) Outside employment or activity which is in violation of a statute, Executive order, or regulation, including applicable State and local statutes and ordinances.
(b) Employees are encouraged to engage in teaching, lecturing, and writing that is not prohibited by law, Executive Order 11222 of May 11, 1965, as amended by Executive Order 11590 of April 27, 1971, this part or other Council regulations. However, an employee shall not, either for or without compensation, engage in teaching, lecturing, or writing, including teaching, lecturing, or writing for the purpose of the special preparation of a person or class of persons for an examination of the Civil Service Commission or Board of Examiners for the Foreign Service, that depends on information obtained as a result of his Government employment, except when that information has been made available to the general public or will be made available on request, or when the agency head gives written authorization for use of non-public information on the basis that the use is in the public interest.
(c) An employee shall not receive any salary or anything of monetary value from a private source as compensation for his services to the Government.
(d) An employee shall not engage in outside work or activity which may be construed by the public to be official acts of the Council, or of a nature closely paralleling the work of the Council.
(e) An employee who engages in any kind of outside paid employment on a substantially regular basis shall submit to his immediate supervisor a memorandum describing the employment and stating approximately how many hours per week he is so employed. The immediate supervisor shall forward the memorandum through the Director for inclusion in the employee’s Official Personnel Folder.
(f) This section does not preclude an employee from:
(1) Participation in the activities of national or State political parties not proscribed by law;
(2) Participation in the local self-government activities in the community in which he resides to the extent permitted by law; or,
(3) Participation in the affairs of, or acceptance of an award for meritorious public contribution or achievement given by, a charitable, religious, professional, social, fraternal, nonprofit educational, recreational, public service, or civic organization.
§ 706.204 Financial interests.
(a) An employee shall not:
(1) Have a direct or indirect financial interest that conflicts substantially, or appears to conflict substantially, with his Government duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a result of or primarily relying on, information obtained through his Government employment.
(b) This section does not preclude an employee from having a financial interest or engaging in financial transactions to the same extent as a private citizen not employed by the Government so long as it is not prohibited by law, Executive Order 11222, as amended, 5 CFR part 735, or this part.
§ 706.205 Misuse of information.
For the purpose of furthering a private interest an employee shall not, except as provided in § 706.203(b), directly or indirectly use, or allow the use of, official information obtained through or in connection with his Government employment which has not been made available to the general public.
§ 706.206 Support of Council programs.
(a) When a Council program is based on law or Executive order, every employee has a positive obligation to make it function as efficiently and economically as possible and to support it as long as it is a part of recognized public policy. An employee may, therefore, properly make an address explaining and interpreting such a program, citing its achievements, defending it against uninformed or unjust criticism, pointing out the need for possible improvements, or soliciting views for improving it.
(b) An employee shall not, either directly or indirectly, use appropriated funds to influence a Member of Congress to favor or oppose legislation in violation of 18 U.S.C. 1913. However, an employee is not prohibited from:
(1) Testifying as a representative of the Council on pending legislation proposals before congressional committees on request; provided, that the relevant provisions of the current OMB Circular A-14 (“Legislation Coordination and Clearance”) are complied with; or
(2) Assisting congressional committees in drafting bills or reports on request, when it is clear that the employee is serving solely as a technical expert under the direction of committee leadership.
§ 706.207 Use of Government property.
An employee shall not directly or indirectly use, or allow the use of, Government property of any kind, including property leased to the Government, for other than officially approved activities. An employee has a positive duty to protect and conserve Government property including equipment, supplies, and other property entrusted or issued to him.
§ 706.208 Indebtedness.
(a) An employee shall pay each just financial obligation in a proper and timely manner, especially one imposed by law, such as Federal, State, or local taxes. For the purpose of this section, a “just financial obligation” means one acknowledged by the employee or reduced to judgment by a court or one imposed by law such as Federal, State or local taxes.
(b) When an employee has a levy placed against his salary for failure to pay an indebtedness for Federal income taxes, he shall be issued a written reprimand stating that failure to make satisfactory arrangements regarding future tax liabilities will be grounds for removal.
(c) When an employee is the subject of a letter of complaint stating that he has not paid his State or local taxes and has failed to make satisfactory arrangements regarding the debt, he shall be interviewed by the Assistant Director, Division of Program Coordination and Management. In this interview he shall be instructed to make satisfactory arrangements for the payment of his debt immediately and informed that failure to do so will be grounds for removal.
(d) When an employee is the subject of a letter of complaint regarding any other kind of indebtedness to a unit of government, Federal, State, or local, the procedure prescribed in paragraph (c) of this section shall be observed.
(e) When a creditor who holds a legal judgment against an employee requests that the Council assist in collecting the debt, the employee shall be interviewed by the Assistant Director, Division of Program Coordination and Management. In this interview he shall be instructed to pay the debt in full within 90 days, or within whatever longer period is specified by the Assistant Director, Division of Program Coordination and Management if he determines that a 90-day limit would impose undue hardship on the employee, and informed that failure to do so will be grounds for removal.
(f) When an employee is the subject of a letter of complaint from a creditor who does not hold a legal judgment against the employee, the Assistant Director, Division of Program Coordination and Management shall forward a copy of the letter to the employee together with a memorandum calling the employee’s attention to the provisions of this section. However, the Council will not assist the creditor in collecting the debt.
§ 706.209 Gambling, betting, and lotteries.
An employee shall not participate, while on Government-owned or leased property or while on duty for the Government, in any gambling activity, including the operation of a gambling device, in conducting a lottery or pool, in a game for money or property, or in selling or purchasing a numbers slip or ticket.
§ 706.210 Coercion.
An employee shall not use his Government employment to coerce, or give the appearance of coercing, a person to provide financial benefit to himself or another person, particularly one with whom he has family, business, or financial ties.
§ 706.211 General conduct prejudicial to the Government.
An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.
§ 706.212 Miscellaneous statutory provisions.
The attention of each employee is directed to the following statutory provisions:
(a) House Concurrent Resolution 175, 85th Congress, 2d Session, 72 Stat. B12, the Code of Ethics for Government Service.
(b) Chapter 11 of Title 18, United States Code, relating to bribery, graft and conflicts of interest.
(c) The prohibition against lobbying with appropriated funds (18 U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (E.O. 10450, 18 U.S.C. 1918).
(e) The prohibition against the employment of a member of a Communist organization (50 U.S.C. 784).
(f) The prohibitions against:
(1) The disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 783); and
(2) The disclosure of confidential information (18 U.S.C. 1905).
(g) The provision relating to the habitual use of intoxicants to excess (5 U.S.C. 7352).
(h) The prohibition against the misuse of a Government vehicle (31 U.S.C. 638a(c)).
(i) The prohibition against the misuse of the franking privilege (18 U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination or personnel action in connection with Government employment (18 U.S.C. 1917).
(k) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).
(l) The prohibition against mutilating or destroying a public record (18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging transportation requests (18 U.S.C. 508).
(n) The prohibitions against:
(1) Embezzlement of Government money or property (18 U.S.C. 641);
(2) Failing to account for public money (18 U.S.C. 643); and
(3) Embezzlement of the money or property of another person in the possession of an employee by reason of his employment (18 U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).
(p) The prohibitions against political activities in Subchapter III of Chapter 73 of Title 5, United States Code and 18 U.S.C. 602, 603, 607, and 608.
(q) The provision relating to the denial of the right to petition Congress (5 U.S.C. 7102).
(r) The prohibition against an employee acting as the agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219).
(s) The prohibition against a public official appointing or promoting a relative, or advocating such an appointment or promotion (5 U.S.C. 3110).
(t) The prohibition against the employment of an individual convicted of felonious rioting or related offenses (5 U.S.C. 7313).
(u) The tax imposed on certain employees (e.g., Presidential appointees, employees excepted under Schedule C, employees in GS-16 or above, or a comparable pay level) who knowingly engage in self-dealing with a private foundation (26 U.S.C. 4941, 4946). “Self-dealing” is defined in the statute to include certain transactions involving an employee’s receipt of pay, a loan, or reimbursement for travel or other expenses from, or his sale to or purchase of property from a private foundation.
Subpart C—Conduct and Responsibilities of Special Government Employees
§ 706.301 Use of Government employment.
A special Government employee shall not use his Government employment for a purpose that is, or gives the appearance of being, motivated by the desire for private gain for himself or another person, particularly one with whom he has family, business, or financial ties.
§ 706.302 Use of inside information.
(a) A special Government employee shall not use inside information obtained as a result of his Government employment for private gain for himself or another person either by direct action on his part or by counsel, recommendation, or suggestion to another person, particularly one with whom he has family, business, or financial ties. For the purpose of this section, “inside information” means information obtained under Government authority which has not become part of the body of public information.
(b) A special Government employee may engage in teaching, lecturing, and writing to the same extent, and subject to the same restrictions, as provided in § 706.303(b) for employees.
§ 706.303 Gifts, entertainment, and favors.
(a) Except as provided in paragraph (b) of this section a special Government employee, while so employed or in connection with his employment, shall not receive or solicit from a person having business with the Council anything of value as a gift, gratuity, loan, entertainment, or favor for himself or another person, particularly one with whom he has family, business, or financial ties.
(b) The exceptions from the restrictions as set forth in § 706.202(b) for employees apply in the same manner to special Government employees.
§ 706.304 Applicability of other provisions.
The provisions of §§ 706.206 through 706.211 apply to special Government employees in the same manner as to employees.
Subpart D—Statements of Employment and Financial Interests
§ 706.401 Employees required to submit statements.
(a) Employees in the following named positions shall submit statements of employment and financial interst to the Director:
(1) Employees in Grade GS-16 or above of the General Schedule established by the Classification Act of 1949, as amended;
(2) The General Counsel and Administrative Officer;
(3) The Staff Specialists assigned to review applications by States for planning grants under Title III of the Water Resources Planning Act;
(4) Special Government employees, as defined in § 706.102; and
(5) Employees classified at GS-13 or above under 5 U.S.C. 5332, or at a comparable pay level under another authority, who are in positions which the Director may determine have duties and responsibilities which require the incumbent to report employment and financial interests in order to avoid involvement in possible conflicts-of-interest situation and carry out the purpose of law, Executive order, and Council regulations.
(b) A statement of employment and financial interest is required from the Director and shall be submitted by the Director to the Chairman of the Council.
§ 706.402 Employee’s complaint on filing requirements.
An employee who feels that his position has been improperly included in the list in § 706.401 as one requiring the submission of a statement of employment and financial interests may obtain a review of his complaint under the Council’s internal grievance procedure.
§ 706.403 Form of statements.
An employee required to submit a statement of employment and financial interests shall submit that statement in the format prescribed by the Division of Management.
§ 706.404 Time for submission of statements.
An employee required to submit a statement of employment and financial intersts by § 706.401 shall submit that statement no later than 30 days after the date of entrance on duty in the position covered by § 706.401.
§ 706.405 Supplementary statements.
Changes in, or additions to, the information contained in an employee’s statement of employment and financial interests shall be reported in a supplementary statement, in the format prescribed by the Division of Management, as of June 30 each year. If no changes or additions occur, a negative report is required. Notwithstanding the filing of the annual report required by this section, each employee shall at all times avoid acquiring a financial interest that could result, or taking an action that would result in a violation of the conflicts-of-interest provisions of section 18 U.S.C. 208, or subpart B of this part.
§ 706.406 Interests of employees’ relatives.
The interests of a spouse, minor child, or other member of an employee’s immediate household are considered to be interests of the employee. For the purpose of this section, “member of an employee’s immediate household” means those blood relations who are residents of the employee’s household.
§ 706.407 Information not known by employees.
If any information required to be included on a statement of employment and financial interests or on a supplementary statement, including holdings placed in trust, is not known to the employee but is known to another person, the employee shall request that other person to submit the information in his behalf.
§ 706.408 Information not required.
An employee is not required to submit on a statement of employment and financial interests, or on a supplementary statement, any information relating to the employee’s connection with, or interest in, a professional society or a charitable, religious, social, fraternal, recreational, public service, civic, or political organization or a similar organization not conducted as a business enterprise. For the purpose of this section, educational and other institutions doing research and development or related work involving grants of money from or contracts with the Government are deemed “business enterprises” and are required to be included in an employee’s statement of employment and financial interests.
§ 706.409 Opportunity for explanation of conflict or appearance of conflict.
When a statement submitted under § 706.401 indicates a conflict or an appearance of conflict, between the interests of an employee and the performance of his services for the Government, the employee concerned shall be given an opportunity to explain the conflict or appearance of conflict before remedial action is initiated.
§ 706.410 Confidentiality of statements.
Each statement of employment and financial interests, and each supplementary statement, shall be held in confidence and retained in limited access files of the reviewing official. The use of information on the statements shall be limited to that necessary to carry out the purposes of this part. Information from a statement or a supplementary statement shall not be disclosed except by decision of the Director for good cause shown: Provided, That information from a statement or a supplementary statement of the Director shall not be disclosed except by decision of the Chairman for good cause shown.
§ 706.411 Effect of statements on other requirements.
The statements of employment and financial interests and supplementary statements required of employees are in addition to, and not in substitution for or in derogation of any similar requirement imposed by law, order, or regulation. The submission of a statement or supplementary statement by an employee does not permit him or any other person to participate in a matter in which he or the other person’s participation is prohibited by law, order, or regulation.
§ 706.412 Submission of statements by special Government employees.
(a) Each special Government employee shall submit a statement of employment and financial interests not later than the time of his employment. Each special Government employee shall keep his statement current throughout his period of employment by the submission of supplementary statements.
(b) A special Government employee shall submit his statement of employment and financial interests in the format prescribed by the Division of Management. The statement will be filed with the Division of Management and is accorded the confidentiality prescribed in § 706.410.
(c) The provisions of §§ 706.406 through 706.411 apply to special Government employees in the same manner as to employees.
(d) The Director may waive the requirement in paragraph (a) of this section for the submission of a statement of employment and financial interests in the case of a special Government employee who is not a consultant or an expert when he finds that the duties of the position held by that special Government employee are of a nature and at such a level of responsibility that the submission of the statement by the incumbent is not necessary to protect the integrity of the Government. For the purposes of this paragraph “consultant” and “expert” have the meanings given those terms by Chapter 304 of the Federal Personnel Manual.
§ 706.413 Submission of statements by River Basin Commission Chairmen.
A statement of employment and financial interest is not required under this part from Chairmen of River Basin Commissions created by the President pursuant to Title II of the U.S. Water Resources Planning Act. The Commission Chairmen are subject to section 401 of Executive Order 11222, as amended, and are required to file a statement with the Chairman of the Civil Service Commission.
PART 707—COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
Subpart A—General
§ 707.1 Background.
(a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) establishes national policies and goals for the protection and enhancement of the environment. Section 102(2) of NEPA contains certain policy statements and procedural requirements directed toward the attainment of such goals. In particular, all Federal agencies are required to give appropriate consideration to the environmental effects of their proposed actions in their decisionmaking and to prepare detailed environmental statements on recommendations or reports on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.
(b) Executive Order 11991 of May 24, 1977, amended E.O. 11514 and directed the Council on Environmental Quality (CEQ) to issue regulations to implement the procedural provisions of NEPA. Accordingly, CEQ issued final NEPA regulations (40 CFR Parts 1500-1508) on November 29, 1978, which are binding on all Federal agencies as of July 30, 1979. Section 1507.3(a) of CEQ regulations provides that each Federal agency shall as necessary adopt implementing procedures to supplement the regulations. Section 1507.3(b) of the CEQ NEPA regulations identifies those sections of the regulations which must be addressed in agency procedures.
§ 707.2 Purpose.
The purpose of this NEPA rule is to establish Water Resources Council (WRC) policy and procedures which supplement the CEQ NEPA regulations by making them more specifically applicable to our activities and which implement § 1507.3 (a) and (b) of the CEQ NEPA regulations. This rule will be revised to incorporate detailed procedures integrating NEPA and the Principles and Standards (P&S) and applicable parts of the procedures for Federal participants in the preparation of comprehensive regional or river basin plans when these procedures are developed. This NEPA rule must be used in conjunction with the CEQ NEPA regulations. Compliance with both the CEQ NEPA regulations and this NEPA rule is required. Information in the CEQ NEPA regulations generally is not repeated here to avoid needless duplication. This NEPA rule supersedes WRC Policy Statement No. 2—Environmental Statements-Framework Studies and Assessments and Regional or River Basin Plans.
§ 707.3 Applicability.
This NEPA rule applies to the WRC as an independent executive agency and to Title II river basin commissions (RBC’s) and other entities (such as interagency committees) preparing studies and plans for WRC review and transmittal to the President. Although Title III State planning grants do not normally require environmental assessments or statements (§ 707.8 (a)(3)), the WRC will encourage States receiving grants to give appropriate consideration to the environmental effects of their proposed actions and to incorporate suitable environmental conditions, to the extent permitted by State law. The preamble to the WRC Title III guidelines will reflect this policy.
§ 707.4 Definitions.
(a) Responsible Federal Official (RFO). The “Responsible Federal Official (RFO)” is the official of the Federal Government designated by this rule who shall be responsible for the implementation of NEPA, including regulations issued by the CEQ (40 CFR parts 1500 through 1508) and the rule. Of particular importance, the RFO determines the need for an Environmental Assessment or Environmental Impact Statement (EIS) in accordance with § 707.8 (a)(2) and (b), and if an EIS is required, files the draft and final EIS, makes the Record of Decision and assures appropriate public involvement in accordance with 40 CFR 1506.6. The Chairman of the RBC’s are the RFO’s for the purpose of ensuring compliance with the provisions of NEPA and the P&S for those activities which are funded in whole or in part through the WRC and carried out by the RBC’s, such as framework studies, special studies, comprehensive coordinated joint plans, regional or river basin (Level B) plans and revisions thereof. The Chairman of the WRC, or his designee, is the RFO for complying with the provisons of NEPA and the P&S for those framework studies, regional or river basin plans, comprehensive coordinated joint plans, and special studies which are funded by the WRC and carried out by WRC interagency committees and WRC coordinating committees; principles, standards and procedures for planning water and related land resources; rules and regulations of the WRC, and other activities of the WRC.
(b) Major Federal Action. “Major Federal action” as defined in the CEQ NEPA regulations (40 CFR 1508.18) includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Such actions include WRC interagency committee, and WRC coordinating committee adoption, approval or submittal of plans for water and related land resources. For the purpose of this rule, RBC adoption, approval or submittal of a plan for water and related land resources is considered a major Federal action by virtue of the scope and significant environmental consequences of such actions, the participation of Federal officials in these RBC actions, and the WRC requirements for Federal agency consistency with approved regional water resource management plans (WRC Policy Statement No. 4—The Utilization of Comprehensive Regional Water Resource Management Plans).
§ 707.5 Policy.
(a) General. The WRC and the RBC’s administer certain programs that must comply with both NEPA and the P&S. Generally, the environmental analysis done during the development of the Environmental Quality (EQ) account under the P&S partially overlaps the analysis required in an EIS, presenting an opportunity for integration. The requirements of NEPA and the P&S will be carried out by integrating the two processes to the fullest extent practicable and by combining to the fullest extent practicable the Environmental Assessment or, when required, Environmental Impact Statement, with each study or plan into a single document that will comply fully with the requirements of both processes, as provided by the CEQ NEPA regulations (40 CFR 1502.10 and 1506.4).
(b) Public participation. For each environmental assessment and impact statement, the appropriate RFO will establish a specific program and schedule for public participation of all interested parties in the NEPA process, and shall otherwise provide for public involvement in accordance with the CEQ NEPA regulations (40 CFR 1506.6).
(c) Environmental Impact Statements. Environmental Impact Statements (EIS’s) as required under Section 102(2)(C) of NEPA will be prepared by river basin commissions, interagency committee, or WRC coordinating committees for comprehensive coordinated joint plans and regional or river basin (Level B) plans, or revisions thereof. The Environmental Impact Statement will be prepared concurrently with the preparation of the study or plan. The statement will reflect the level of planning involved and will address those environmental considerations and alternatives relevant to decisionmaking at that level (see § 707.9 Tiering). Review and comment on the draft study or plan and the incorporated draft environmental impact statement will be performed simultaneously, and the final combined report will incorporate and discuss the comments received on the draft.
Subpart B—Water Resources Council Implementing Procedures
§ 707.6 Early involvement in private, State, local, and other non-Federal activities requiring Federal action.
(a) Section 1501.2(d) of the CEQ NEPA regulations requires Federal agencies to provide for early involvement in activities which, while planned by private or other non-Federal entities, requires some subsequent form of Federal approval or action to which NEPA applies. Such activities for which early involvement is appropriate include those private, local, State, or regional water and related land resources plans, projects or programs which should be included in a regional water resources management plan or Level B plan, since the plans normally required an EIS or assessment as provided in § 707.8(a) of this NEPA rule.
(b) To facilitate the implementation of 40 CFR 1501.2(d), the appropriate RFO shall publish and distribute in the region or basin in which a comprehensive or Level B study is conducted, guidelines for non-Federal entities of the types of plans, projects, and programs which shall be included in such comprehensive or Level B plan. The RFO shall advise non-Federal entities on the scope and level of environmental information and analysis needed for environmental documents.
§ 707.7 Ensuring that environmental documents are actually considered in agency decisionmaking.
(a) Section 1505.1 of the NEPA regulations contains requirements to ensure adequate consideration of the environmental documents in agency decisionmaking. To implement these requirements, the RFO shall:
(1) Consider relevant environmental documents in evaluating actions proposed in plans and studies.
(2) Make relevant environmental documents, comments, and responses part of the record in any formal rulemaking or adjudicatory proceedings.
(3) Ensure that relevant environmental documents, comments and responses accompany the proposed actions through existing review processes.
(4) Consider only those alternatives encompassed by the range of alternatives discussed in the relevant environmental documents when evaluating proposals for agency action.
(5) Where an EIS has been prepared, consider the specific alternatives analyzed in the EIS when evaluating the proposal which is the subject of the EIS.
(b) The NEPA process begins at the earliest possible stage of the planning process and is completed when the RFO makes a finding of significant impact or a record of decision. In cases where the Chairman of a River Basin Commission, or regional Federal official has been designated as the RFO, and a plan or report is submitted to WRC for review and comment after completion of the NEPA process, the environmental documents incorporated into such plans or reports, or submitted with them, shall be fully considered by WRC when it prepares its views, comments, and recommendations for transmittal to the President and Congress. The RFO shall include the Findings of No Significant Impact, or the Record of Decision, with the documents submitted to WRC for review.
§ 707.8 Typical classes of action requiring similar treatment under NEPA.
(a) Section 1507.3(b)(2) of the CEQ NEPA regulations in conjunction with § 1508.4 requires agencies to establish three typical classes of action for similar treatment under NEPA. These typical classes of actions are set forth below:
(1) Actions normally requiring EIS’s:
(i) Adoption, approval or submittal of regional water resources management plans (comprehensive, coordinated, joint plans or elements thereof).
(ii) Adoption, approval or submittal of Level B plans.
(2) Actions normally requiring assessments but not necessarily EIS’s:
(i) Establishment and implementing guidance (including significant changes) in principles, standards, and procedures for planning water and related land resources.
(ii) Adoption, approval or submittal of framework studies and special studies which include recommendations for future actions.
(iii) Any action not in paragraph (a) (1) or (3) of this section.
(3) Actions normally not requiring assessments or EIS’s (categorical exclusions):
(i) Approval of Title III State planning grants.
(ii) Adoption, approval or transmittal or priorities reports.
(iii) Preparation of the National Water Assessment.
(iv) Recommendations to the President with the respect to Federal policies and programs, except for transmittal of plans described in paragraph (a) (1) or (2) of this section for which the original EIS or Environmental Assessment (EA) will be transmitted with the plan. A second EIS is not required.
(v) Framework studies and assessments and special studies which do not include recommendations for future actions.
(b) Where the presence of extraordinary circumstances indicates that an action normally excluded may have a significant environmental effect, the appropriate RFO shall independently determine whether an EIS or an environmental assessment is required.
§ 707.9 Tiering.
In accordance with the CEQ NEPA regulations 40 CFR 1502.4(d) and 1508.28(a), this NEPA rule emphasizes the use of tiering to relate broad and narrow actions. The level of detail in EIS’s and EA’s prepared by RBC’s, WRC interagency committees or WRC coordinating committees will reflect the level of detail in the plans, particularly the comprehensive and policy nature of comprehensive, coordinated, joint plans or elements or revisions thereof. These EIS’s are not intended to substitute for individual statements on individual projects as more detailed planning and analysis will be required for major Federal actions proposed in these plans. The “policy” or “overview” EIS should serve as the framework and introduction for a more site-specific project EIS developed by the implementing Federal agency. Environmental impact statements for regional water resource management and Level B plans will generally address the items in the recommended format (40 CFR 1502.10) on the basis of water and related land resources of an entire region or river basin. This is the level of consideration at which the environmental issues and considerations are most relevant to decisionmaking. They may also address groups of interrelated or individual plan elements where these involve significant environmental considerations.
§ 707.10 Scoping.
Scoping will be used to determine the extent of issues to be addressed by the EIS and to identify significant issues related to the proposed action. Scoping will be conducted as described by the CEQ NEPA regulations, §§ 1501.7 and 1508.25.
§ 707.11 Environmental information.
Interested persons may contact the Director, U.S. Water Resources Council, 2120 L Street, NW., Washington, DC 20037, for information regarding the Council’s compliance with NEPA.
PART 708—UPPER MISSISSIPPI RIVER BASIN COMMISSION: PUBLIC PARTICIPATION IN UPPER MISSISSIPPI RIVER SYSTEM MASTER PLAN
§ 708.1 Definitions.
As used in the part, the term:
(a) Act means the Inland Waterways Authorization Act of 1978, Pub. L. 95-502.
(b) Commission means the Upper Mississippi River Basin Commission, with headquarters at Fort Snelling, Twin Cities, Minnesota.
(c) Master Plan means the Upper Mississippi River System Comprehensive Master Management Plan mandated by Title I of the Act.
(d) GREAT refers to studies conducted by Great River Environmental Action Teams pursuant to section 117 of the Water Resources and Development Act of 1976 (Pub. L. 94-587) for purposes of developing balanced management strategies for multipurpose use of the Upper Mississippi River.
(e) System means those Upper Mississippi River reaches containing commercial navigation channels on the Mississippi River main stem north of Cairo, Illinois; the Minnesota River, Minnesota; Black River, Wisconsin; Saint Croix River, Minnesota and Wisconsin; Illinois River and Waterway, Illinois; and Kaskaskia River, Illinois.
(f) Public meeting means a meeting to provide individuals and representatives of interested organizations opportunities to present their opinions and suggestions by means of an informally structured format.
(g) Public hearing means a formally structured public meeting scheduled to provide adequate time for each testimony, which will be recorded, transcribed, published, and made available to the public.
§ 708.2 Scope.
(a) This part describes minimum guidelines for public participation in the development, revision, and implementation of the Master Plan specified in the Act.
(b) This part applies to the following organizations with references to the activities described in § 708.2(a):
(1) The Commission, including its staff and persons, organizations, and agencies under contract to it for work within the scope of the Master Plan.
(2) Such Federal departments and agencies as are directed under section 101(3) of the Act to conduct studies pursuant to the Master Plan, for any work carried out for purposes of developing, revising, and implementing the Master Plan.
(3) Such departments and agencies of any state or local government as are authorized and/or directed to carry out studies and analyses under direction or advice of the Commission as stipulated in section 101 of the Act.
(c) The guidelines referred to in this part shall be considered general requirements applicable to all studies, procedures, programs, regulations, or other administrative devices carried out under § 708.2(b), but only for those Master Plan Activities under authority of the Act.
§ 708.3 Policy, objectives, and standards.
(a) Policy. (1) Congress has directed the Commission to prepare a comprehensive Master Plan for management of the System in cooperation with appropriate Federal, state, and local officials. In developing the plan, the Commission is required to identify various economic, recreational, and environmental objectives of the System, recommend guidelines to achieve such objectives, and propose methods to assure compliance with such guidelines and coordination of future management decisions affecting the System, and include with the proposed plan any legislative proposals which may be necessary to carry out such recommendations and achieve such objectives.
(2) The Commission is required to provide for public participation in the development, revision, and implementation of the Master Plan and to encourage and assist such participation. In doing this, the Commission seeks to foster a spirit of openness and a sense of mutual trust between the public and the planners. Public participation is expected to result in greater responsiveness of the Master Plan to public concerns and priorities, as well as improved popular understanding of official studies, planning processes, and decisions.
(3) In order for public participation to be effective, it must be timely and integrated into the planning process. The Commission shall seek public participation prior to any decision-making on the Master Plan or any of its components. Such public participation will ordinarily include informational output about the plan, public response and input, two-way discussions or exchange, and Commission consideration of public expressions.
(4) Neither the Master Plan as a whole nor any component of it shall be formulated without incorporation of a program of public participation involving fair representation of all segments of the public. The public participation section of the Master Plan—Plan of Study shall be developed consistent with the guidelines described in this part.
(5) Public participation processes utilized by the Commission in developing the Master Plan shall aim for the highest achievable standards of objectivity and thoroughness consistent with other requirements of the Act and the intent, concepts, ideas, and basic tenets of the Principles and Standards for Planning Water and Related Land Resources published by the Water Resources Council in the
(b) Objectives. Objectives of the public participation program developed by the Commission as part of the Master Plan are:
(1) To develop awareness of public preferences by those responsible for preparation and approval of the Master Plan.
(2) To anticipate and help resolve conflicts arising during the study,
(3) To improve information transfer and public awareness of the study,
(4) To provide for periodic reviews in the development of the Master Plan as well as the final review required by the Act, and
(5) To provide for evaluation of public participation in the planning process.
(c) Standards. The Commission in meeting the above objectives recognizes that:
(1) Inputs from the public are important for development of the Master Plan;
(2) Participants are to include individual citizens as well as organizations;
(3) The public participation program is to assume the existence of numerous publics and their interests—identified and delineated according to a number of socioeconomic, demographic, geographic, person, and ideological variables;
(4) The public participation process must be continuous: it is to be provided for, encouraged, and assisted throughout the planning process;
(5) The public participation process is to have as a product measurable sets of opinion and other manifestations of the public will in regard to details of the Master Plan;
(6) Inputs from the public into the Master Plan through avenues other than the Commission public participation program should be facilitated; and
(7) Desires expressed by the public are likely to be conflicting and therefore, public participation cannot be substituted for the decision-making responsibility.
§ 708.4 Required programs and reports.
(a) The Commission shall prepare a work plan for public participation as part of the Master Plan—Plan of Study. The work plan shall satisfy minimum standards described in this part. The work plan shall describe all substantive administrative and management arrangements to elicit public participation, shall delineate Commission member and staff responsibilities, and shall identify budgetary provisions.
(b) In addition to public meetings and hearings, the public participation program shall include survey research, program evaluation, and information/education activities as described in § 708.5.
(c) The Commission shall recommend long-term public participation activities and programs related to implementation of the Master Plan. These recommendations shall be based on evaluation of procedures and results mandated in this part and carried out during the Master Plan preparation.
(d) The Commission shall issue reports describing the participation program as developed or implemented during the designated reporting period. Each such report shall include as a minimum a brief description of the main participation elicited, the costs of the effort, and the use that was made of the elicited information in the planning process. The reporting periods shall be arranged so as to correspond generally with the main sequential segments of the overall planning process.
§ 708.5 Program objectives implementation.
(a) The continuing public participation program shall contain mechanisms or activities for each objective listed in § 708.3(b). The listing of specific measures in this section shall not preclude additional techniques for obtaining, encouraging, or assisting public participation. Special efforts shall be made to simplify the planning process and products for public and media use. Variances may occur in the use of any given program element, according to the nature of the planning issues, the budgetary resources accorded the participation process, and the effectiveness of the participation actually elicited and measured in the field.
(b) To obtain data in regard to plan-relevant public opinion, methods, shall include but not be limited to survey research.
(1) The survey research process shall be developed and utilized in connection with the Master Plan as a whole and its components. Whereas public meetings are organized to elicit unstructured participation and opinion changes, surveys shall be targeted on carefully selected samples of functionally defined publics located throughout the System.
(2) The Commission shall evaluate the effectiveness of the information/education program on the part of the surveyed publics. This is necessary for continued and sustained participation in the decision-making steps of the planning process.
(3) If a gap is found between the desired and actual effectiveness, the Commission shall develop and implement a short-term narrow-focus information and education program targeted at the specific problem areas in question.
(4) On completion of the short-term information/education program, re-surveys shall be made among the affected publics. The results shall constitute a measure of the effectiveness of the short-term information/education program.
(c) To improve information transfer and public awareness of the study, two levels of information and education activities shall be pursued. The first shall have the general public as its target audience and shall emphasize methods that foster general awareness and understanding of plan issues and the nature of the ongoing planning process. The second level of information and education activities shall focus on public interest groups, agency representatives, and elected officials and shall emphasize the creation of plan component data and information in a form that can be utilized by these groups in the plan decision-making process. The information presented shall be broadly representative of the relevant perspectives and issues.
(d) Throughout the period of study and the succeeding period of implementation of the Master Plan, the Commission shall provide a centralized capability for acting as an information/education center. The Commission shall provide a central source of media-directed information about the Master Plan, its components, future expected planning needs in the System, current program-related activities, and other relevant subject areas. Special efforts shall be made to summarize complex technical materials for public and media use. The Commission shall have standing arrangements for early consultation and exchange of views with interested or affected persons and organizations on development or revisions of plans, programs, or other significant actions prior to decision-making. Survey research methods and other procedures will be used to determine the content and emphasis of information and education activities and products.
(e) The Commission shall provide for periodic reviews of the development of the Master Plan as well as the final review required by the Act. Activities to accomplish this shall include:
(1) Public meetings. (i) Public meetings shall be organized at locations in parts of the System most significantly affected by the possible outcomes. These open meetings shall be timed to coincide with sequential elements of the planning process.
(ii) The meetings shall provide citizens and representatives of interested organizations an opportunity to utilize an informally-structured format to air their suggestions and grievances in regard to the subject matter of the Master Plan.
(iii) When the Commission deems a formal public hearing is necessary, it may coincide with the pulic meeting. When this is the case, a clear distinction shall be made between the formal and open segments of the meeting/hearing.
(iv) Documents and data pertaining to the agenda for each public meeting shall be made available to the public for a reasonable time prior to the public meeting, at a location convenient to the expected participants. In addition, the Commission shall prepare outlines of major issues including brief descriptions of the issues, alternatives, and sources of additional information.
(2) Public hearings. (i) The Commission is required to publish a preliminary plan not later than January 1, 1981 and to hold public hearings in each state which would be affected by the plan. The Commission is required to review all comments presented at such hearings or submitted in writing to the Commission, and, after making any revisions in the plan it decides are necessary, to submit to Congress a final Master Plan not later than January 1, 1982.
(ii) The public hearings on the preliminary plan and any other public hearings deemed necessary by the Commission are to be consistent with the provisions of sec. 205 of Pub. L. 89-80 in conformity with this part. If conflict exists between the minimum guidelines of this part and requirements of state or Federal law or other regulations pertaining to a particular hearing, the more stringent requirements shall be observed.
(iii) In addition to any other formal legal requirements, the public hearings are to be well publicized and notices of each hearing will be mailed to interested or affected persons at least 30 calendar days before the hearings.
(iv) In determining locations and times for hearings, consideration will be given to travel and to facilitating attendance and testimony by a cross-section of interested or affected persons and organizations. Accessibility of hearing sites by public transportation will be considered.
(v) The preliminary plan and any supporting reports, documents, and data to be discussed at the public hearings are to be made available to the public at least 30 days prior to the public hearings. Information concerning availability of the preliminary plan, reports, documents, and data will be provided in public hearing notices.
(vi) The elements of the public hearings, proposed time schedules, and any constraints on statements shall be specified in public hearing notices.
(vii) Testimony of witnesses at public hearings shall be scheduled in advance when necessary to ensure maximum participation and allotment of adequate time for testimony, provided that such scheduling is not used as a bar to unscheduled testimony. Blocks of time shall be considered for major categories of witnesses.
(viii) Public hearing procedures shall not inhibit free expression of views by requirements of more than one legible copy of any statement submitted, or for qualifications of witnesses beyond that needed for identification.
(ix) A record of public hearing proceedings shall be made promptly available to the public at cost. The Commission shall invite, receive, and consider comments in writing from any interested or affected persons and organizations. All such comments shall be part of the public record.
(f) To provide mechanisms for evaluation of public participations in the Master Plan:
(1) The Commission shall conduct periodic evaluations of the public participation program. The purpose of this evaluation is to determine the following:
(i) The extent of actual participation elicited from each of the process phases—public meetings, public hearings, survey research, direct input from organizations, and other sources.
(ii) The degree to which participation elicited from each process phase was actually utilized in the planning process.
(iii) Regional/local differences in effectiveness of public participation methods and procedures.
(iv) The need to modify the public participation process during the Master Plan.
(2) Public participation evaluations shall be incorporated into the Master Plan. Recommendations resulting from this overall evaluation shall be utilized to draft new guidelines and plans of study for public participation programs to be implemented after the Master Plan has been adopted.
PART 725—IMPLEMENTATION OF EXECUTIVE ORDERS 11988, FLOODPLAIN MANAGEMENT AND 11990, PROTECTION OF WETLANDS
Subpart A—Introduction
§ 725.0 Purpose.
This rule establishes the procedures to be followed by the U.S. Water Resources Council for applying Executive Order 11988, Floodplain Management, and Executive Order 11990, Wetlands Protection, to the water resources planning assistance activities that it performs.
§ 725.1 Authority.
This rule is being promulgated pursuant to the Water Resources Planning Act of 1965, section 402, Pub. L. 89-90, 79 Stat. 245 (42 U.S.C. 1962d-1). In addition, Executive Order 11988, Floodplain Management, at section 2(d); directs the preparation of procedures implementing its provisions, as does Executive Order 11990, Protection of Wetlands, at section 6. Each of these Orders was prepared in furtherance of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). The floodplain management Order is also based on the National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 et seq.), and the Flood Disaster Protection Act of 1977, as amended (87 Stat. 975).
§ 725.2 Policy.
It is the policy of the Council to provide leadership in floodplain management and the protection of wetlands. Further, the Council shall integrate the goals of the Orders to the greatest possible degree into its procedures for implementing the National Environmental Policy Act. The Council shall take action to:
(a) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains and the destruction or modification of wetlands;
(b) Avoid direct and indirect support of floodplain development and new construction in wetlands wherever there is a practicable alternative;
(c) Reduce the risk of flood loss;
(d) Promote the use of nonstructural loss reduction methods to reduce the risk of flood loss;
(e) Minimize the impact of floods on human health, safety and welfare;
(f) Minimize the destruction, loss or degradation of wetlands;
(g) Restore and preserve the natural and beneficial values served by floodplains;
(h) Preserve and enhance the natural and beneficial values served by wetlands;
(i) Involve the public throughout the floodplain management and wetlands protection decisionmaking process;
(j) Adhere to the objectives of the Unified National Program for Floodplain Management;
(k) Continually analyze existing and new policies of the Council to ensure consistency between them and the provisions of E.O. 11988 and 11990; and
(l) Improve and coordinate the Council’s plans, programs, functions and resources so that the Nation may attain the widest range of beneficial uses of the environment without degradation or risk to health and safety.
§ 725.3 Applicability.
These regulations apply to all Council actions which have the potential to affect floodplains or wetlands or which would be subject to potential harm if they were located in floodplains or wetlands. The basic test of the potential of an action to affect floodplains or wetlands is the action’s potential to result in the long- or short-term adverse impacts associated with:
(a) The occupancy or modification of floodplains, or the direct and indirect support of floodplain development; or
(b) The destruction or modification of wetlands or the direct or indirect support of new construction in wetlands.
§ 725.4 Definitions.
The following definitions shall apply throughout this regulation:
(a) All definitions from section 6 of E.O. 11988 (42 FR 26951); all definitions from section 7 of E.O. 11990 (42 FR 26951); and all definitions listed in the Glossary of the Council’s Floodplain Management Guidelines for Implementing E.O. 11988 (43 FR 6030) from the term base flood through the term structures.
(b) Action means all Council activities including but not limited to plan review, study preparation, preparation and modifications to the Council’s Principles, Standards and Procedures (P,S,&P), provision of financial assistance for State, regional, and river basin planning and reviews of compliance.
(c) Council means the U.S. Water Resources Council.
(d) Enhance means to increase, heighten, or improve the natural and beneficial values associated with wetlands.
(e) Regional planning sponsors means Federal agencies, states, groups of States, river basin commissions, interstate compact commissions and interagency committees.
Subpart B—Responsibilities
§ 725.5 Council studies.
All studies and appraisals performed by the Council pursuant to section 102 of Pub. L. 89-80 and any recommendations based on these activities shall include specific analyses for reflection of and opportunities to meet the objectives of E.O. 11988 and E.O. 11990. The Council’s Floodplain Management Guidelines (43 FR 6030), E.O. 11988 and E.O. 11990 provide the basic evaluation tools for these analyses.
§ 725.6 Principles, standards and procedures.
The Principles, Standards and Procedures established by the Council pursuant to section 103 of Pub. L. 89-80 shall reflect the provisions of the Executive Orders. These Principles, Standards and Procedures are found in 18 CFR parts 710 through 717.
§ 725.7 Regional or river basin planning.
(a) In agreements between river basin commissions or other regional planning sponsors and the Council for the preparation and revision of regional and river basin Level B Studies and regional water resource management plans, the responsible official representing the river basin commission or regional planning sponsor shall certify to the Council that the following criteria have been or will be utilized as part of the planning process:
(1) Determination of whether proposed activities would be located in floodplains or wetlands, or, even if located outside of them, would have the potential to affect floodplains or wetlands;
(2) Avoidance of performing activities within floodplains or wetlands wherever there is a practicable alternative;
(3) Where avoidance of floodplains cannot be achieved, minimization of adverse impacts and support of floodplain development, and preservation and restoration of natural and beneficial floodplain values;
(4) Where avoidance of wetlands cannot be achieved, minimization of adverse impacts and support of new construction in wetlands, and preservation and enhancement of natural and beneficial wetlands values; and
(5) Involvement of the public in the floodplain management and wetlands protection decisionmaking process.
(b) The Council’s Floodplain Management Guidelines (43 FR 6030) shall be used as the basis for implementing the criteria in § 725.7(a)(1) through (5).
(c) The responsible official representing the regional planning sponsor shall, to the fullest extent of his or her authority, ensure that any activities carried out under his or her plans and programs meet the criteria in § 725.7(a)(1) through (5).
§ 725.8 Report, plan and recommendation development and review.
All reports, plans and recommendations received under section 104 of Pub. L. 89-80 shall be reviewed by the Council for reflection of and opportunities to meet the objectives of E.O. 11988 and 11990. This review shall be based on the criteria in § 725.7(a)(1) through (5), on E.O. 11988 and 11990, and on the Council’s Floodplain Management Guidelines (43 FR 6030).
§ 725.9 Reviews of compliance.
Reviews of compliance performed pursuant to section 304 of Pub. L. 89-80 shall include analysis of each program’s treatment of floodplain management and wetland protection in accordance with the manner in which these concepts are expressed in E.O. 11988, 11990, and the Council’s Floodplain Management Guidelines (43 FR 6030).
PART 740—STATE WATER MANAGEMENT PLANNING PROGRAM
§ 740.1 Purpose and scope.
(a) In recognition of the role of the States as the focal point for the management of water and related land resources, this part establishes guidelines for financial and program assistance to States for water management planning programs which address each State’s particular needs, which are based on established State goals and objectives, and which take into consideration national goals and objectives.
(b) The purpose of the State Water Management Planning Program (Program) is to provide financial and program assistance to participating States to support the development and modification of comprehensive water management planning programs.
(c) Funds made available under this part shall be used to establish, develop or enhance existing or proposed State water resources management and planning programs that are designed to address pertinent State and national goals and objectives, as well as the goals and objectives of Title III of the Water Resources Planning Act (Act), Pub. L. 89-80, as amended, by addressing in the Program the following:
(1) Coordination of the program authorized by the Act and those related programs of other Federal agencies;
(2) Integration of water conservation with State water management planning;
(3) Integration of water quantity and water quality planning;
(4) Integration of ground and surface water planning;
(5) Planning for protection and management of groundwater supplies;
(6) Planning for protection and management of instream values; and
(7) Enhanced cooperation and coordination between Federal, regional State and local governmental entities involved in water and related land resources planning and management.
§ 740.2 Definitions.
Act means the Water Resources Planning Act (as amended), Pub. L. 89-80, 42 U.S.C. 1962 et seq.
Activities means a series of actions and operations which address the water management problems of the State and have a specific purpose or objective. Activities are further characterized by one or more major tasks and milestones.
Affected interests means public and private organizations, local, tribal, State and Federal governments that may be potentially affected by the State water management planning program.
Application means a document submitted by a Governor or designee for consideration by the Council for a grant.
Council means the Water Resources Council established by section 101 of the Act.
Designated agency means an entity of a State designated by the Governor to act as the grant recipient and to act as liaison with the Council for this Program.
Fiscal year means a 12-month period ending on September 30, unless otherwise specified.
Governor means the chief executive officer of a State, including the Mayor of the District of Columbia.
Grant agreement means a document executed by the authorized official of the Water Resources Council and by the authorized representative of the State agency designated as the grant recipient containing the agreed terms and conditions of the approved grant offer and award.
Grant period means a 12-month period specified in the grant agreement, which shall begin during the fiscal year as defined above, during which program funds are authorized to be expended, obligated, or firmly committed by the grantee for the purposes specified in the Act, in the grant agreement and in these guidelines.
Land area of a State means the land and inland water area of a State as defined and set forth in the publication “Boundaries of the United States and the Several States” Geological Survey Professional Paper 909, U.S. Government Printing Office, Washington, DC issued in 1976, or revisions thereof.
Local government means a local unit of government including a county municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments, sponsor group representative organization (as defined in 7 CFR 620.2, 40 FR 12472, March 19, 1975) and other regional or interstate government entity; or any agency or instrumentality of a local government exclusive of institutions of higher education and hospitals.
Milestones mean key events in the activity implementation schedule. Milestones indicate important dates for design implementation and monitoring tasks. Examples of milestones include but are not limited to hiring of key staff, publication dates, workshop dates, or the completion of specific phases of the implementation schedule.
Obligation means orders placed, contracts awarded, grants issued, services received and similar transactions during a given period that require the disbursement of money.
Per capita income of a State means the most recent year of official U.S. Department of Commerce per capita income figures for the State.
Program period means the period beginning on October 1, 1980, and extending through the authorized life of the Program.
Program funds means grant funds provided under the Act, non-Federal funds and the value of in-kind contributions used for matching purposes.
Population of a State means the latest official resident population estimate by the U.S. Department of Commerce available on or before January 1, of the year preceding the fiscal year for which funds under this part are appropriated.
Related land resources means any land affected by present or projected management practices causing significant effects on the quantity or quality of the water resource.
State means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or the Commonwealth of the Northern Mariana Islands.
State water management planning means those activities necessary to effect coordinated decisions for the use of water and related resources within a State or interstate region; which provide for the correction or prevention, respectively, of present and future water and related land resources problems; which consider the potential for water and related land resources use from the standpoint of present and future needs; and which provide for involvement of affected interests. Water management planning activities may include, but are not limited to, planning, data collection and analysis, studies and investigations, program design and coordination, development of regulation and enforcement programs, information dissemination, public meetings, and the coordination of the program with other related programs.
Task means a specific action or operation which comprises a part of the implementation effort for an activity.
Water conservation means activities designed to (1) reduce the demand for water, (2) improve efficiency in use and reduce losses and waste of water, or (3) improve land management practices to conserve water.
Water management planning need is defined as the basis for establishing criteria for assessing each State’s need for assistance under the Program.
Work Plan means a document listing the major program elements to be performed under the program during each grant period which presents, in chronological order, the major activities and tasks in the program element; which targets major milestones or proposed accomplishments by activity, cost and date; and which will be used in preparing reports to reflect accomplishment of goals and objectives under the participating State’s comprehensive program.
§ 740.3 State applications.
(a) The Council shall invite the Governor of each State to submit a State application.
(b) To be eligible for financial assistance under this part, a State shall submit to the Council an original and two copies of a State application executed by the Governor or designee. The State application shall be submitted not later than 90 days from the date of the Council’s invitation.
(c) The program application package shall consist of:
(1) The forms and instructions for completing the application;
(2) The criteria to be used by the Council in assessing need for water management planning funds;
(3) Information on the applicable Federal requirements for administering the program; and
(4) Other information pertinent to the application.
(d) A State application shall contain:
(1) The name and address of the designated State agency;
(2) A description of the comprehensive State water management planning program, or modifications thereto, as required by § 740.4(a);
(3) A work plan of the major program activities of the State water management planning program which targets milestones on a semi-annual basis;
(4) A budget and corresponding narrative in accordance with the forms and instructions provided by the Council;
(5) A notice of concurrence by the State clearinghouse in accordance with the Office of Management and Budget (OMB) Circular A-95;
(6) The manner in which the general public is involved in the development and modification of the State program; and
(7) A brief description of activities, in order of priority, which would be carried out if additional funds were made available during the grant period under the provisions of § 740.6(e). This may include supplementing or complementing ongoing activities described in paragraph (d)(3) of this section.
(e) The Governor or designee may request an extension to the submission date by submitting a written request to the Council not less than 30 days prior to the date referred to in paragraph (b) of this section. The extension shall be granted only if, in the Council’s judgment, acceptable and substantial justification is shown and the extension would further the objectives of the Act. An extension shall not be granted for more than 30 days.
§ 740.4 State water management planning program.
(a) A State shall submit a description of its proposed State program with the State application, which shall:
(1) Describe water and related land resources problems, needs and opportunities, and the priorities proposed for their resolution;
(2) Specify the goals and objectives which reflect the water resources policy of the State and which address the major problems which are of concern to the State;
(3) Describe the major elements of the State water management program, which should address but not be limited to:
(i) The integration of water quantity and water quality planning and management;
(ii) The protection and management of instream values;
(iii) The protection and management of groundwater supplies;
(iv) The integration of ground and surface water planning and management; and
(v) Water conservation.
(4) Identify Federal, State, or local government, or public or private organizations that will participate and a general description of how they are involved in the management planning process;
(5) If provisions are made for pass-through of funds, describe the process by which recipients will be selected, and the purpose of the pass-through; and
(6) List existing or proposed administrative, legal and/or institutional arrangements to be used in coordinating intrastate, interstate and regional water resources planning activities involving State, local and/or the Federal Government with the proposed water management planning program of the State to assure that all such activities are considered in program implementation.
§ 740.5 Review and approval of State applications and programs.
(a) The Council shall review and approve each State application for financial assistance if it is determined that:
(1) The State water management planning program meets the objectives of the Act;
(2) The State application and the State water management planning program meet the requirements of this part; and
(3) Progress on the previous grant period’s work plan is satisfactory, based on the requirements set forth by the Council.
(b) Based on the review of the application, the Council shall determine the amount of funds to be made available pursuant to § 740.6 and shall notify the designated agency in each participating State of the grant award as soon as possible after funds are apportioned for Council use.
(c) If an application is not approved by the Council, it shall be returned by registered mail with a full explanation of the reasons for that determination. The State shall then be allowed the opportunity to submit a revised application within 30 days after receipt by the State of such notification. Should the State determine that further review is required by the State clearinghouse under OMB Circular A-95, an additional 30 days will be allowed.
(d) If the grant amount requested by a State differs from the grant amount offered by the Council, the Council will request the designated State agency to submit a revised budget and work plan with the acceptance of the grant offer.
(e) The State, upon acceptance of the terms and conditions of the notice of grant award, as presented by the Council, will be granted financial assistance in the amount of the approved final budget.
(f) The work plan for the State water management planning program may be revised at any time by submitting revisions to the work plan and budget to the Council for approval in connection with any proposed significant change (an addition or deletion of major activities specified in the approved work plan) with appropriate provision for A-95 State clearinghouse review. The Council will review the proposed revision and notify the State of its decision no later than 30 days from the date of receipt of the request.
§ 740.6 Financial assistance.
(a) The Council shall provide financial assistance from funds available for each fiscal year to each State having an approved application pursuant to § 740.5.
(b) Within the provisions prescribed by paragraphs (c) and (d) of this section, the Council may grant up to 50 percent of the cost for a State program.
(c) The funds appropriated pursuant to the Act for the fiscal year shall be allocated among the participating States as follows, except that under paragraphs (d) (2) through (4) of this section no State shall be granted a greater or lesser sum of funds which shall be based upon a procedure in which each of the factors of population, land area, and the reciprocal of per capital income, are adjusted such that:
(1) Those States having observations two standard deviations below the mean of each respective factor are equated to the mean-minus-two standard deviations, and
(2) Those States having observations two standard deviations above the mean of each respective factor are equated to the mean-plus-two standard deviations.
(d) Financial assistance for the Program shall be allocated among the participating States from funds available for any fiscal year based on the following formula:
(1) An equal share not to exceed $100,000, the total of which shares shall not exceed 10 percent of the funds available for any fiscal year;
(2) One-third of the remaining balance of the funds after accounting for paragraph (d)(1) of this section in the ratio that the population of each State bears to the population of all States;
(3) One-third of the remaining balance of the funds after accounting for paragraphs (d)(1) and (2) of this section in the ratio that the land area of each State bears to the land area of all the States;
(4) One-third of the remaining balance of funds after accounting for paragraphs (d)(1), (2), and (3) of this section in the ratio that the reciprocal of all per capital income of a State bears to the sum of the reciprocals for all States; and
(5) The remainder of the funds according to the need for water management planning in each State as expressed by the State and assessed by the Council. In assessing need for water management, the Council shall utilize established criteria, the proposed program, and information made available during program review.
(e) Redistribution of grant funds may occur:
(1) If a State fails to apply for a grant within the period specified in § 740.3, or is unable to match the total allocation reserved under § 740.6(d) for that State, that portion of the reserved allocation will be withdrawn by the Council;
(2) If a State fails to obligate Federal funds within the grant period of the approved or amended grant agreement as prescribed in § 740.7(c), such funds shall be returned to the Council not later than 30 days after submission of the Financial Statement for the grant period unless the Council, based on written request, grants an exception or extension to this time limitation;
(3) Funds available under paragraph (e)(1) of this section shall be available for redistribution to those States requesting additional funds pursuant to § 740.3(d)(7). These funds shall be distributed on the basis of proposals in the application, and the relationship of the State’s original allocation to the original allocation of other States requesting redistribution funds; and
(4) Funds available under paragraph (e)(2) of this section shall be added to funds available for distribution for the next fiscal year, if the appropriation legislation for the current year allows such action.
§ 740.7 Administration of financial assistance.
(a) Grants under this part shall comply with the requirements of:
(1) Office of Management and Budget (OMB) Circular A-102, Revised, (34 CFR part 256), entitled “Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments;”
(2) Federal Management Circular (FMC) 74-4 (34 CFR part 255), entitled “Cost Principles Applicable to Grants and Contracts with State and Local Governments;”
(3) OMB Circular A-73 (34 CFR part 251), entitled “Audit of Federal Operations and Programs;”
(4) OMB Circular A-95, entitled “Evaluation, Review and Coordination of Federal and Federally assisted Programs and Projects;”
(5) Treasury Circular (TC) 1075, entitled “Regulations Governing Withdrawals of Cash from the Treasury for Advances under Federal Grants and other Programs;”
(6) TC 1082, entitled, “Notification to States of Grants-in-Aid Information”; and
(7) Other procedures which the Council may from time to time prescribe for the administration of financial assistance.
(b) The planning process as required by these guidelines and assisted by WRC Title III program funds shall reflect the concepts of the Council’s 1979 publication, A Unified National Program for Floodplain Management, and the concepts of floodplain and wetlands identification, avoidance and mitigation as described in the Council’s Floodplain Management Guidelines (43 FR 6030). In the application for financial assistance, the State shall assure the Council that the following planning concepts have been or will be integrated into the planning process:
(1) Determination of whether proposed activities would be located in floodplains or wetlands, or, even if located outside of them, would have the potential to affect floodplains or wetlands;
(2) Avoidance of performing activities within floodplains or wetlands wherever there is a practicable alternative;
(3) Where avoidance of floodplains cannot be achieved, minimization of adverse impacts and support of floodplain development, and preservation and restoration of natural and beneficial floodplain values; and
(4) Where avoidance of wetlands cannot be achieved, minimization of adverse impacts and support of new construction in wetlands, and preservation and enhancement of natural and beneficial wetlands values.
(c) Program funds must be obligated within the grant period unless the Council, based on written request, grants an exception or extension to this time limitation. The repeated occurrence of unobligated program funds at the end of the grant period will be considered in determining the need for assistance in subsequent years pursuant to § 740.6(d)(5).
(d) The procurement standards, practices, rules and policies of the State as customarily applied, if in accordance with Attachment O of OMB Circular A-102, shall govern for procurement costs incurred in an approved program.
(e) For all matching funds the sources of a State’s cost share shall have no bearing on whether or not such costs can be matched by Federal funds except that:
(1) Other Federal funds or property cannot be used for matching purposes unless specifically permitted by Federal law;
(2) Program funds shall not be used to match Federal funds under any other federally aided program;
(3) Non-Federal funds used to match other federally aided programs shall not be used to match funds provided under the Act; and
(4) Federal funds provided through this program, if duly matched through the requirements of this part, may be used as non-Federal contributions for Level B studies beginning in Fiscal Year 1981.
(f) Any cost incurred for water management planning may be employed for matching a grant awarded under the Act except as specified in this section. Such expenditures must be reasonable, documentable, and directly applicable to the approved program.
(g) Program funds may not be used for:
(1) Items whose costs are not allowable under the provision of FMC 74-4;
(2) Contributions, dues or assessments to support headquarters offices of interstate commissions, compacts, councils, interagency committees, or other similar organizations;
(3) Scholarly or scientific investigations for purposes other than addressing water management problems, needs, concerns or interests specifically identified and explained in the approved program as a priority consideration;
(4) Construction, payment of subsidies, or purchase of land or easements;
(5) Purchase of equipment with a unit cost of $1,500 or more without prior approval of the Council; and
(6) Purchase of equipment with a unit cost of less than $1,500 when the cumulative cost of such equipment in any one grant period exceeds 1 percent of the grant award, without prior approval of the Council.
(h) Federal funds may not be used to substitute for State and local funds that would have been made available for water management planning programs in the absence of the grant funds provided under this part. Federal funds may be used to supplement and complement existing water management planning programs. It does not prevent drawing matching shares from individual programs or from existing agency appropriations, budgets, or resources so long as expenditures are not substituted by Federal funds for the purposes of the Act.
(i) Payments shall be made in accordance with Attachment J of OMB Circular A-102 and TC 1075. Grant funds shall be requested only on an as needed basis.
(j) Financial management procedures shall comply with Attachment G of OMB Circular A-102 and with TC 1075. The applicable Federal requirements shall apply to the State and to local governments or non-governmental entities that receive funds as a sub-grantee for the purposes of the Act.
§ 740.8 Reporting.
(a) The designated agency shall submit program status reports and financial statements in accordance with procedures established by the Council. Instructions and a description of the content of these reports and the appropriate forms will be provided by the Council and will be in accordance with Attachments H, I and K of OMB Circular A-102 and TC 1075.
(b) The annual program report shall be due 90 days after the end of the grant period, as specified in the grant agreement, and shall contain:
(1) A summary description of the major accomplishments and results of the water management planning activities for the year, and an explanation of any work proposed in the work plan that has not been completed;
(2) An updated activity milestone chart, for each major activity in the work plan, showing the completion dates of major tasks;
(3) For those States implementing an evaluation system, a summary of the results of the evaluation efforts on the overall program effectiveness and key water management activities;
(4) A list of publications, public information materials, and other documents prepared in whole or in part with program funds which must duly note the use of Council grant funds in the printing of these documents;
(5) Other pertinent information, including any specific need for assistance; and
(6) An annual Financial Status Report.
(c) The Report of Federal Cash Transactions, as required under the provisions of Treasury Circular 1075, is due 30 days after the end of each quarter of the grant period, as specified in the grant agreement.
§ 740.9 Recordkeeping.
Each State or other entity within a State receiving financial assistance under this part shall make and retain records required by the Council, including records which fully disclose the amount and disposition of financial assistance received; the cost of administration; the total cost of all activities for which assistance is given or used; and any data and information which the Council determines are necessary to protect the interests of the United States and to facilitate an effective financial audit and performance evaluation. The Council and the Comptroller General of the United States shall have access to any books, documents, records or receipts which the Council determines are relevant or pertinent, either directly or indirectly, to any financial assistance provided under this part. Such records shall be retained for a period of three years, which starts from the date of the submission of the annual financial status report for the grant period.
§ 740.10 Program review and assistance.
(a) Each State’s program will be reviewed annually by the Council to evaluate program management and accomplishments relative to the approved work plan. The Council shall:
(1) Review progam information including the application, annual reports, and other relevant information; and
(2) Make onsite visits as frequently as practicable to review the State program to:
(i) Provide assistance in the administration of the program, and at the request of the State, specific technical assistance in water resources management;
(ii) Determine whether Council policies, procedures or guidelines need revision to more effectively administer the grant; and
(iii) Gather information on practical or innovative techniques, methodologies, or other relevant information on the program.
(b) Based on the Council’s annual review of each State program, the following may occur:
(1) If the program conforms to the requirements of the Act, the State will be advised of its continued eligibility for a grant;
(2) If it appears that the program does not comply with the requirements of the Act in either design or administration, the Council shall ascertain all the relevant facts. The State shall be notified immediately of the apparent inadequacies of the program with citation of specific requirements of the Act, this part, or other relevant instructions which apparently have not been met. The State shall be given timely opportunity to be heard through the filing of written statements and personal presentations in support of their position. If the Council is satisfied that sufficient adjustments have been made in the design and operation of the program, payments to the State will be continued; and
(3) If the Council determines on the basis of all the facts that the program still does not meet the requirements of the Act, the Governor shall be notified of the decision and the reasons therefore, and that no further payments shall be made until the noted inadequacies are satisfactorily resolved.
§ 740.11 Federal/State coordination.
The Council will coordinate the program under this part with similar or related programs of other Federal agencies in an effort to achieve consistency and compatibility in the administration of Federal programs.
§ 740.12 Amendments.
The Council may amend all or portions of these guidelines in accordance with established procedures. If it does, it will:
(a) Consult with appropriate advisory groups;
(b) Publish such proposed rulemaking in the
(c) Simultaneously provide a copy of such proposed changes to each designated agency.
§ 740.13 Supplemental instructions.
As deemed appropriate, the Council may amplify the guidelines in this part by means of supplemental instructions, and may clarify program or administrative requirements set forth in these guidelines by the means of policy bulletins.
PARTS 741-799 [RESERVED]
CHAPTER VIII—SUSQUEHANNA RIVER BASIN COMMISSION
PART 800 [RESERVED]
PART 801—GENERAL POLICIES
§ 801.0 Introduction.
(a) The Governors of the States of New York, Pennsylvania, and Maryland, and a representative of the President of the United States are members of the Susquehanna River Basin Commission. The Commission is a regional governmental agency whose purpose is to effect comprehensive multiple purpose planning for the conservation, utilization, development, management, and control of the water and related natural resources of the basin, which includes part of New York, Pennsylvania, and Maryland.
(b) The Susquehanna River Basin Compact provides broad authority for the Commission to carry out basinwide planning programs and projects, and to take independent action as it determines essential to fulfill its statutory regional governmental role.
(c) The objectives of the Commission are to:
(1) Develop cooperative and coordinated Federal, State, local, and private water and related natural resources planning within the basin,
(2) Formulate, adopt, effectuate, and keep current a comprehensive plan and a water resources program for the immediate and long-range use and development of the water resources of the basin,
(3) Provide for orderly collection and evaluation of data, and for the continuing promotion and conduct of appropriate research relating to water resources problems,
(4) Establish priorities for planning, financing subject to applicable laws, development and use of projects and facilities essential to effectively meet identified water resource needs,
(5) And to maintain these resources in a viable state.
(d) The Commission shall employ a multiobjective approach recognizing national economy, regional development and environmental quality in planning for the use and development of the water resources of the basin.
(e) It is the purpose of this document to set forth the objectives of the Commission and to present certain basic policies that (1) have basinwide application, (2) are specifically pertinent to the formulation of a comprehensive plan, (3) will serve as guidelines for all agencies or individuals with planning responsibilities for the development and use of the water resources of the basin, (4) form the basis for working relationship between the Commission and other agencies having related responsibilities in the basin. This statement will be amended and updated from time to time.
§ 801.1 Standard definitions.
(a) Many terms that will be used in official Commission documents may have slightly different meanings to various groups. To avoid confusion and to increase the clarity of the meaning the Commission applies to frequently used terms standard definitions will be utilized.
(b) The Commission will use the standard definitions set forth for the terms shown in section 1.2 of the Compact,
§ 801.2 Coordination, cooperation, and intergovernmental relations.
(a) The interstate nature of the Susquehanna River Basin and the broad regional authority of the Commission require clear and effective working relationships with the States, Federal Government, and local and private sectors in all matters relating to the water resources of the basin.
(1) The Federal Government will be encouraged and asked to participate in water resources projects and programs having national or broad regional significance. The Commission will act to encourage local initiative to solve water resources problems within a local and regional context, but when faced with obviously needed action that is not forthcoming from other sources will act, in accordance with the Compact, on its own.
(2) The Compact provides authority for the Commission to serve in a regulatory capacity and also to act as a managing and operating agency. The Commission will exercise its regulatory authority mainly in interstate matters or where signatory authority is not being effectively exercised or where the signatory has little or no authority to act. Similarly, the Commission may manage and operate various facilities if it is determined that this is an area in which an important and necessary service can be rendered.
(3) Should it become necessary for the Commission to undertake development, management and operation of projects, arrangements for repayment of all project costs and eventual operation and maintenance costs will be appropriately prorated among the signatories or otherwise financed in accordance with the Compact.
(4) The Commission will utilize the functions, powers, and duties of the existing offices and agencies of government to the extent consistent with the Compact.
(5) In its actions the Commission will maintain a high level of public visibility. Broad government, public, and private sector commentary on Commission proposals and findings will be invited, and to the extent possible be incorporated and reflected in decisions for finalization of plans, projects, and programs having significant effect on the water resources of the basin. A concerted effort will be made to keep the Commission and its activities readily available to government and public scrutiny, and responsive to their concerns.
(b) The Commission shall exercise its regional jurisdiction in an effort to avoid and minimize conflicts and duplication of effort and shall:
(1) Cooperate with and help coordinate Federal, State, local government, and private sector efforts in all matters relating to the planning, conservation, preservation, use, development, management and control of the water resources of the basin.
(2) Develop administrative agreements, as needed, with appropriate agencies of the signatories and other agencies to facilitate achievement of the Commission’s objectives and related responsibilities of other agencies by minimizing duplication of effort and maximizing the contributions the respective agencies are best able to make.
(3) Build upon present water resources planning and related activities of the signatory parties, local government, other public bodies, and the private sector and fully consider their recommendations and suggestions.
(4) Establish advisory committees as needed for specific assignments and seek meaningful liaison with sources of technical and scientific expertise.
(5) Share with interested parties results of investigations, studies, tests, and research undertaken by the Commission in an appropriate manner and form.
(6) Conduct its regular meetings announced in advance and open to the public.
(7) Depend upon existing public and private agencies for the construction, operation, and maintenance of projects except when the project is necessary to further the comprehensive plan and the responsible agency does not act or when the Commission is asked to act by one or more signatories, one or more local governments, or other responsible entities.
(8) Require that the planning of projects affecting the water resources of the basin by Federal, State, local agencies and private organizations be undertaken in coordination with the Commission and in accordance with the Compact.
(9) Coordinate and cooperate with the appropriate agencies of a member jurisdiction on implementing actions to address resiliency in the face of changing climatic conditions and to support the aims of environmental justice.
§ 801.3 Allocations, diversions, withdrawals and release.
(a) The extremes in availability of water in the basin means that water will not always be available when and where it is needed. One of the responsibilities of the Commission is to act upon requests for allocations, withdrawals, or diversions of water for in-basin or out-of-basin use. Water emergencies may be expected to develop in portions of the basin due to drought conditions or other causes. The Commission will act promptly to effect alleviation of the condition to the extent posible.
(b) The Commission will require evidence that proposed interbasin transfers of water will not jeopardize, impair or limit the efficient development and management of the Susquehanna River Basin’s water resources, or any aspects of these resources for in-basin use, or have a significant unfavorable impact on the resources of the basin and the receiving waters of the Chesapeake Bay.
(c) The Commission may, in making decisions on allocations, diversions, withdrawals, and releases, consider the following principles among others:
(1) That allocations, diversions, or withdrawals of water be based on the common law principles of riparian rights which entitles landholders in any watershed to draw upon the natural stream flow in reasonable amounts and be entitled to the stream flow not unreasonably diminished in quality or quantity by upstream use or diversion of water; and on the maintenance of the historic seasional variations of the flows into Chesapeake Bay.
(d) When the need arises for action on requests for allocations, diversions, or withdrawals of water from either surface or ground waters of the basin the Commission shall:
(1) Allocate waters of the basin to and among the signatory States to the Compact as the need appears, and impose related conditions, obligations, and release requirements.
(2) Determine if a proposed allocation, withdrawal or diversion is in conflict with or will significantly affect the comprehensive plan, and assure existing immediate and projected long term local and regional uses are protected.
(3) Impose conditions, obligations and release requirements for dams and/or diversion structures to protect prior local interests, downstream interests, and environmental quality.
(4) In the matter of drought, disasters or catastrophes, natural or manmade, which cause actual and immediate shortage of available and usable water supply, determine and delineate the area of shortage and by unanimous vote declare a state of water supply emergency therein, and impose direct controls on any and all allocations, diversions and uses of water to meet the emergency condition.
(5) In water emergencies coordinate the efforts of Federal, State, local, and other persons and entities in dealing with the emergency.
(6) Determine and delineate, after public hearing, areas within the basin wherein the demands upon supply made by water users have developed or threaten to develop to such a degree as to create a water shortage or impair or conflict with the comprehensive plan.
(7) When areas in need of protection from overdemand of safe yield of the supply have been delineated, declare such areas protected from further depletion, with the consent of the member or members from the affected State or States.
(8) Require that no person divert or withdraw from any protected area water for domestic, municipal, agricultural, or industrial uses in excess of such quantities as the Commission may prescribe by general regulation or pursuant to a permit granted heretofore under the laws of any of the signatory States.
§ 801.4 Project review.
(a) The Compact provides generally that no project affecting the water resources of the basin shall be undertaken by any person, governmental authority, or other entity prior to approval by the Commission.
(b) In many instances, one or more of the signatory parties will exercise project review authority regarding proposed projects in the basin coming under the review of the Commission. Accordingly the Commission will direct its attention to reviewing the completeness and effectiveness of the review procedures of the signatories and will endeavor to minimize duplication of staff effort, and time and cost to the applicant.
(c) The Commission will establish exempt categories in accordance with the section 3.10-3 of the Compact, and for projects determined not to have a substantial effect on the water resources of the basin. In dealing with Federal or federally licensed projects, the Commission will take the provisions of reservations (r) and (w) of United States Pub. L. 91-575 (84 Stat. 1509) and provisions of the Compact into account.
(d) It is expected that project review procedures will be modified following adoption of the comprehensive plan. In the meantime the Commission will:
(1) Base its review and comments pertaining to proposed projects within the basin coming under the purview of the Commission, on review and comments of signatory parties. In general, the Commission review will seek to ascertain the completeness of procedures followed by the signatory parties in their review, and will refrain from specifically rechecking detailed evaluations. (Susquehanna River Basin Commission Resolution No. 72-5)
(2) Require as it determines necessary, submission of pertinent project plans and documents for its independent review and approval. The purpose of this review will be to ascertain whether all relevant provisions of the Compact and actions taken pursuant thereto have been observed:
(i) When the Commission has determined that a project may have significant effect on the water resources of the basin.
(ii) When a proposed project does not fall under the review jurisdiction of any agency of the signatory parties.
§ 801.5 Comprehensive plan.
(a) The Compact requires that the Commission formulate and adopt a comprehensive plan for the immediate and long-range development and use of the water resources of the basin.
(1) The plan will include existing and proposed public and private programs, projects, and facilities which are required, in the judgment of the Commission, to meet present and future water resources needs of the basin. Consideration shall be given to the effect of the plan, or any part of the plan, on the receiving waters of the Chesapeake Bay. The Commission shall consult with interested public bodies and public utilities and fully consider the findings and recommendations of the signatory parties, their various subdivisions and interested groups. Prior to adoption of the plan the Commission shall conduct at least one public hearing in each signatory State.
(2) The plan will reflect consideration of multiple objectives, including economic growth; sustainable regional development and environmental resilience; coordinated study and consideration of water quantity and water quality and the nexus with existing and proposed land uses; and the promotion of cooperation and collaboration between all levels of government and non-governmental entities.
(3) The Commission will strive to complete a comprehensive update of the comprehensive plan every 20 years. If adjustments are needed during the life span of the plan to address emergent priorities, goals, or objectives, the comprehensive plan will be revised in accordance with requirements of the Compact.
(4) Projects requiring Commission review and approval will be included in the comprehensive plan after formal action is taken at Commission business meetings. Approved projects will be incorporated into the comprehensive plan and accessible via the Commission’s Water Application and Approval Viewer or successor viewer applications.
(b) The comprehensive plan shall provide for the immediate and long-range use, development, conservation, preservation, and management of the water resources of the basin. The plan will be presented in a form and order as determined by the Commission and shall include but not be limited to the following:
(1) Statement of authority, purpose, objectives, and scope.
(2) Identification of priorities, goals, and objectives of the Commission.
(3) Inventory of the basin’s water resources and existing developments, projects, and facilities.
(4) Projection of immediate and long-range water resources needs of the basin.
(5) Outline of plan implementation measures.
(6) Procedures for updating and modifying the plan.
(7) Necessary appendices.
§ 801.6 Water supply.
(a) The Susquehanna River Basin is rich in water resources. With proper planning and management, and with adequate public and private investment in treatment, storage, and distribution facilities, the high potential of the basin to provide water of suitable quality for a wide array of public and private purposes into the foreseeable future should be possible.
(b) The Commission may regulate the withdrawal of waters of the basin not regulated by the signatory parties for domestic, municipal, industrial, and agricultural uses if regulation is considered essential to further the aims set forth in the comprehensive plan.
(c) The Commission shall study the basin’s water supply needs, the potential surface and ground water resources, and the interrelationships to meet these needs through existing and new facilities and projects. Efficient use and management of existing facilities with emphasis on the full utilization of known technology will be explored in meeting water supply needs for domestic, municipal, agricultural, and industrial water supply before new programs or projects are approved.
§ 801.7 Water quality.
(a) The signatory States have the primary responsibility in the basin for water quality management and control. However, protection of the water resources of the basin from pollution, and actions by the signatory parties to achieve abatement and control of pollution are important to the Commission.
(b) The signatory parties have adopted water quality standards for the intra and interstate waters of the basin. Initially these standards will serve as the basis for the Commission’s water quality program in the comprehensive plan.
(c) The Commission’s role in water quality management and control essentially will be one of coordination to ensure water quality standards are adequate to protect broad public water resources interests, and that uniform policies and enforcement are affected by the signatories.
(d) The Commission shall:
(1) Encourage and coordinate efforts of the signatory parties to prevent, reduce, control, and eliminate water pollution and to maintain water quality in accordance with established standards.
(2) Promote government and private sector implementation of maximum practical use of waste utilization and treatment technology.
(3) Promote and encourage State and local governments and industry to plan for regional waste water treatment and management.
(4) In cooperation with appropriate agencies of the signatory parties, make periodic inspections to ascertain the state of compliance with appropriate water quality standards, and as needed establish and operate water quality monitoring stations.
§ 801.8 Flood plain management and protection.
(a) Periodic inundation of lands along waterways has not discouraged development of flood hazards areas. Major floods cause loss of life, extensive damages, and other conditions not in the public interest. A balanced flood plain management and protection program is needed to reduce the flood hazard to a minimum.
(b) The Commission may regulate the use of flood prone lands with approval of the appropriate signatory party, to safeguard public health, welfare, safety and property, and to sustain economic development.
(c) To foster sound flood plain controls, as an essential part of water resources management, the Commission shall:
(1) Encourage and coordinate the efforts of the signatory parties to control modification of the Susquehanna River and its tributaries by encroachment.
(2) Plan and promote implementation of projects and programs of a structural and nonstructural nature for the protection of flood plains subject to frequent flooding.
(3) Assist in the study and classification of flood prone lands to ascertain the relative risk of flooding, and establish standards for flood plain management.
(4) Promote the use of flood insurance by helping localities qualify for the national program.
(5) Assist in the development of a modern flood forecasting and warning system.
§ 801.9 Watershed management.
(a) The character, extent, and quality of water resources of a given watershed are strongly affected by the land use practices within that watershed. Accordingly the Commission will maintain close liaison with Federal, State, and local highway, mining, soil, forest, fish and wildlife, and recreation agencies and with government agencies dealing with urban and residential development programs.
(b) The Commission shall:
(1) Promote sound practices of watershed management including soil and water conservation measures, land restoration and rehabilitation, erosion control, forest management, improvement of fish and wildlife habitat, and land use in highway, urban, and residential development as related to water resources.
§ 801.10 Recreation.
(a) The use of surface water resources of the basin for recreation purposes is extensive. Swimming, fishing, boating, and other water oriented activities have regional and local economic benefit as well as recreational benefit.
(b) The Commission shall cooperate with public and private agencies in the planning and development of water-related recreation and fish and wildlife programs and projects within the basin and shall:
(1) Promote public access to and recreational use of existing and future public water areas.
(2) Promote recreational use of public water supply reservoirs and lakes where adequate treatment of water is provided, and/or where recreational uses are compatible with primary project purposes.
(3) Include recreation as a purpose where feasible, in multipurpose water use planning of reservoirs and other water bodies.
§ 801.11 Public values.
(a) The basin has many points of archeological and historic interest, and is well endowed with vistas of aesthetic significance.
(b) The Commission fully recognizes that the value of these areas cannot be measured simply in economic terms and will strive to preserve and promote them for the enjoyment and enrichment of present and future generations.
(c) The Commission shall:
(1) Seek the advice and assistance of appropriate societies and governmental agencies in the identification of archeological, historic, and scenic areas and unique lands in any planning or development affecting these attributes of the basin.
§ 801.12 Electric power generation.
(a) Significant uses are presently being made of the waters of the basin for the generation of electric power at hydro, pumped storage, and thermoelectric generating stations. Increased demands for electric power throughout the East Coast can be expected to result in proposals for the development of additional electric power generating stations located either in the basin or nearby its borders.
(b) There appears to be limited site potential in the basin for additional hydroelectric generation, and considerable potential for additional pumped storage and thermoelectric generation. The direct and indirect effects of existing and proposed electric generation projects will be considered by the Commission. Items of concern will include consumptive uses of water, alteration of natural stream regimen, effects on water quality, and on the other uses of the streams affected.
(c) The Commission, in cooperation with appropriate agencies of the signatory parties, and with other public and private agencies shall:
(1) Conduct a thorough review of applications to relicense existing electric power generating projects and facilities, and applications to amend existing licenses to determine if the proposal is in accord with the comprehensive plan.
(2) Require that the proposed siting and location in the basin of any type of electric generating facility or any facility located outside the basin having an effect on the waters of the basin, shall be planned in direct consultation with the Commission to enable advance consideration of the possible effects of such installation on the water resources of the basin.
(d) Project sponsors proposing new or significantly modified power generation plants in the basin shall submit to the Commission for review an evaluation of their projected water use and consider all available and feasible technologies, including dry cooling, that could lower the consumptive use of water at the plant. For the purposes of this evaluation, a significantly modified power plant is one that is changing its fuel source or substantially increasing its consumptive use of water.
§ 801.13 Proviso.
(a) This part is promulgated pursuant to sections 3.1, 3.5(1), and 15.2 of the Compact and shall be construed and applied subject to all of the terms and conditions of the Compact and of the provisions of Pub. L. 91-575, 84 Stat. 1509: Provided, Any provision in this statement of general policies that is inconsistent with the Compact itself shall be null and void.
§ 801.14 Public access to records.
(a) Purpose. The Commission, as an independent compact agency, is not subject to any of its member jurisdictions’ laws regarding public access to records. Nevertheless, the Commission wishes to assure, to the maximum extent practicable, the availability of Commission records consistent with the Susquehanna River Basin Compact. The Commission shall maintain an “Access to Records Policy” that outlines the details and procedures related to public access to the Commission’s records. Any revisions to this policy shall be consistent with this section and undertaken in accordance with appropriate public notice and comment consistent with requirements of 18 CFR 808.1(b).
(b) Scope. This section shall apply to all recorded information, regardless of whether the information exists in written or electronic format. There is a strong presumption that records shall be public, except where considerations of privacy, confidentiality, and security must be considered and require thoughtful balancing. The Commission shall identify types of records that are not subject to public access:
(1) Personnel or employment records, excluding salary information;
(2) Trade secrets, copyrighted material, or any other confidential business information;
(3) Records exempted from disclosure by statute, regulation, court order, or recognized privilege;
(4) Records reflecting internal pre-decisional deliberations, including deliberations between the commission and representatives of member jurisdictions;
(5) Records reflecting employee medical information, evaluations, tests or other identifiable health information;
(6) Records reflecting employee personal information, such as social security number, driver’s license number, personal financial information, home addresses, home or personal cellular numbers, confidential personal information, spouse names, marital status or dependent information;
(7) Investigatory or enforcement records that would interfere with active enforcement proceedings or individual due process rights, disclose the identity of public complainants or confidential sources or investigative techniques or endanger the life or safety of Commission personnel; or
(8) Records related to critical infrastructure, excluding financial records, emergency procedures, or facilities.
(c) Procedures. The Access to Records Policy will detail the necessary procedures for requesting records and processing records requests:
(1) Requests shall be in writing and shall be reasonably specific;
(2) The Commission shall identify an Access to Records Officer to handle requests;
(3) The Commission shall respond to a records request within a reasonable time and in consideration of available resources and the nature of the request;
(4) The Commission shall not be required to create a record that does not already exist, or to compile, maintain, format or organize a public record in a manner in which the Commission does not currently practice;
(5) A procedure shall be identified for electronic transfer, copying or otherwise providing records in a manner that maintains the integrity of the Commission’s files; and
(6) A procedure shall be identified for handling review of requests that seek access to information that has been identified as confidential and for notifying the person(s) who submitted the confidential information that it is subject to a records request.
(d) Fees. The Commission shall adopt and maintain a “Records Processing Fee Schedule.” The fees shall be calculated to reflect the actual costs to the Commission for processing records requests and may include the costs of reproducing records and the cost to search, prepare and/or redact records for extraordinary requests.
(e) Appeals. Any person aggrieved by a Commission action on a records request shall have 30 days to appeal a decision in accordance with 18 CFR 808.2.
(f) Disclosure to consultants, advisory committees, and State and local government officials and employees. Data and information otherwise exempt from public disclosure may be disclosed to Commission consultants, advisory committees, and state and local government officials and employees for use only in their work in cooperation with the Commission. Such persons are thereafter subject to the same restrictions with respect to the disclosure of such data and information as any other Commission employee.
§ 801.15 Commission Procurement Procedures; Protests.
(a) Procedures. The Commission shall maintain a policy entitled “SRBC Procurement Procedures” that outlines the details and procedures related to the purchasing and procurement of goods and services by the Commission. Any revisions to this policy shall be consistent with section 15.9 of the Compact and undertaken in accordance with appropriate public notice and comment consistent with the requirements of § 808.1.
(b) Right to protest. A bidder or offeror, a prospective bidder or offeror or a prospective contractor that is aggrieved in connection with the solicitation or award of a contract, may protest to the Commission in writing.
(c) Filing of protest. A protestant shall file the protest on a form and in a manner prescribed by the Commission. A protest shall be filed within ten calendar days after the aggrieved protestant knew or should have known of the facts giving rise to the protest, except that in no event may a protest be filed later than ten calendar days after the date the contract was awarded. The failure to file a timely protest shall be deemed as a waiver of the right to protest by any bidder or offeror, prospective bidder or offeror or a prospective contractor. Untimely filed protests shall be disregarded by the Commission. The Executive Director or his/her designee shall be the presiding officer to hear the bid protest. The awardee of the contract, if any, will be informed by the Commission of any bid protest that may affect the contract and the awardee may intervene as a party in any protest filed.
(d) Contents of protest. A protest shall state all the grounds upon which the protestant asserts the solicitation or award of the contract was improper. The protestant may submit with the protest any documents or information it deems relevant to the protest.
(e) Response and reply. Within 15 calendar days of receipt of a protest, the purchasing officer may submit to the presiding officer and the protestant a response to the protest, including any documents or information deemed relevant to the protest. The protestant may file a reply to the response within ten calendar days of the response.
(f) Evaluation of protest. The presiding officer shall review the protest and any response or reply and may request and review such additional documents or information as they deem relevant to render a decision and may, at their sole discretion, conduct a hearing consistent with § 808.3 of this chapter. All parties will be provided with a reasonable opportunity to review and address any additional documents or information deemed relevant by the presiding officer to render a decision. Additional documents and information deemed relevant by the presiding officer will be included in the record.
(g) Findings and report. Upon completing an evaluation of the protest, the presiding officer shall prepare a report of their findings and recommendations based on the record. The report shall be served by electronic mail or certified mail upon each party to the proceeding. Any party may file objections to the report. Such objections to the report shall be filed with the Commission and served on all parties within 20 calendar days after service of the report. A brief shall be filed together with the objections. Any replies to the objections and briefs will be filed and served on all parties within ten calendar days of service of the objections. Prior to its decision on such objections, the Commission may, in its sole discretion, grant a request for oral argument.
(h) Action by the Commission. The Commission will review the findings and recommendations of the presiding officer and the objections and render a determination. The Commission’s determination will be in writing and will be served by electronic or certified mail upon each party to the proceeding.
(i) Appeal. Any final action by the Commission may be appealed to the appropriate United States District Court within 90 days as set forth in section 3.10(6) and Federal reservation (o) of the Compact.
(j) Record of determination. The Commission’s record of determination for review by the court shall consist of the solicitation; the contract, if any; the administrative record of the protest before the presiding officer; the report of the presiding officer, along with any objections and replies filed; transcripts and exhibits, if any; and the final determination of the Board of Commissioners.
(k) Stay of procurement during pendency of protest. In the event a protest is filed timely under this section, the purchasing officer shall not proceed further with the solicitation or with the award of the contract unless and until the Executive Director makes a written determination that the protest is clearly without merit, or that award of the contract without delay is necessary to protect substantial interests of the Commission, or until the Commission enters a final determination under paragraph (h) of this section.
(l) Exclusive procedure. This section shall be the exclusive procedure for protesting a solicitation or award of a contract by a bidder or offeror, a prospective bidder or offeror or a prospective contractor that is aggrieved in connection with the solicitation or award of a contract by the Commission.
PARTS 803-805 [RESERVED]
PART 806—REVIEW AND APPROVAL OF PROJECTS
Subpart A—General Provisions
§ 806.1 Scope.
(a) This part establishes the scope and procedures for review and approval of projects under section 3.10 of the Susquehanna River Basin Compact, Pub. L. 91-575, 84 Stat. 1509, et seq., (the compact) and establishes special standards under section 3.4(2) of the compact governing water withdrawals, the consumptive use of water, and diversions. The special standards established pursuant to section 3.4(2) shall be applicable to all water withdrawals and consumptive uses in accordance with the terms of those standards, irrespective of whether such withdrawals and uses are also subject to project review under section 3.10. This part, and every other part of 18 CFR chapter VIII, shall also be incorporated into and made a part of the comprehensive plan.
(b) When projects subject to Commission review and approval are sponsored by governmental authorities, the Commission shall submit recommendations and findings to the sponsoring agency, which shall be included in any report submitted by such agency to its respective legislative body or to any committee thereof in connection with any request for authorization or appropriation therefor. The Commission review will ascertain the project’s compatibility with the objectives, goals, guidelines and criteria set forth in the comprehensive plan. If determined compatible, the said project will also be incorporated into the comprehensive plan, if so required by the compact. For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the Commission as a regional agency of the member jurisdictions, no expenditure or commitment shall be made by any governmental authority for or on account of the construction, acquisition or operation of any project or facility unless it first has been included by the Commission in the comprehensive plan.
(c) If any portion of this part, or any other part of 18 CFR Chapter VIII, shall, for any reason, be declared invalid by a court of competent jurisdiction, all remaining provisions shall remain in full force and effect.
(d) Except as otherwise stated in this part, this part shall be effective on January 1, 2007.
(e) When any period of time is referred to in this part, such period in all cases shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the law of the United States, such day shall be omitted from the computation.
(f) Any Commission forms or documents referenced in this part may be obtained from the Commission at 4423 North Front Street, Harrisburg, PA 17110, or from the Commission’s Web site at www.srbc.net.
§ 806.2 Purposes.
(a) The general purposes of this part are to advance the purposes of the compact and include, but are not limited to:
(1) The promotion of interstate comity;
(2) The conservation, utilization, development, management and control of water resources under comprehensive, multiple purpose planning; and
(3) The direction, supervision and coordination of water resources efforts and programs of federal, state and local governments and of private enterprise.
(b) In addition, §§ 806.22, 806.23 and 806.24 of this part contain the following specific purposes: Protection of public health, safety and welfare; stream quality control; economic development; protection of fisheries and aquatic habitat; recreation; dilution and abatement of pollution; the regulation of flows and supplies of ground and surface waters; the avoidance of conflicts among water users; the prevention of undue salinity; and protection of the Chesapeake Bay.
(c) The objective of all interpretation and construction of this part and all subsequent parts is to ascertain and effectuate the purposes and the intention of the Commission set out in this section. These regulations shall not be construed in such a way as to limit the authority of the Commission, the enforcement actions it may take, or the remedies it may prescribe.
§ 806.3 Definitions.
For purposes of parts 806, 807 and 808, unless the context indicates otherwise, the words listed in this section are defined as follows:
Agricultural water use. A water use associated primarily with the raising of food, fiber or forage crops, trees, flowers, shrubs, turf products, livestock and poultry. The term shall include aquaculture.
Application. A written request for action by the Commission including without limitation thereto a letter, referral by any agency of a member jurisdiction, or an official form prescribed by the Commission.
Basin. The area of drainage of the Susquehanna River and its tributaries into the Chesapeake Bay to the southern edge of the Pennsylvania Railroad bridge between Havre de Grace and Perryville, Maryland.
Captured stormwater. Precipitation or stormwater collected on the drilling pad site, including well cellar water, waters from secondary containment, and water collected from post construction stormwater management features.
Change of Ownership. A change in ownership shall mean any transfer by sale or conveyance of the real or personal property comprising a project.
Commission. The Susquehanna River Basin Commission, as established in Article 2 of the compact, including its commissioners, officers, employees, or duly appointed agents or representatives.
Commissioner. Member or Alternate Member of the Susquehanna River Basin Commission as prescribed by Article 2 of the compact.
Compact. The Susquehanna River Basin Compact, Pub. L. 91-575; 84 Stat. 1509 et seq.
Comprehensive plan. The comprehensive plan prepared and adopted by the Commission pursuant to Articles 3 and 14 of the compact.
Construction. To physically initiate assemblage, installation, erection or fabrication of any facility, involving or intended for the withdrawal, conveyance, storage or consumptive use of the waters of the basin. For purposes of unconventional natural gas development projects subject to review and approval pursuant to § 806.4(a)(8), initiation of construction shall be deemed to commence upon the drilling (spudding) of a gas well, or the initiation of construction of any water impoundment or other water-related facility to serve the project, whichever comes first.
Consumptive use. The loss of water transferred through a manmade conveyance system or any integral part thereof (including such water that is purveyed through a public water supply or wastewater system), due to transpiration by vegetation, incorporation into products during their manufacture, evaporation, injection of water or wastewater into a subsurface formation from which it would not reasonably be available for future use in the basin, diversion from the basin, or any other process by which the water is not returned to the waters of the basin undiminished in quantity.
Diversion. The transfer of water into or out of the basin.
Drilling pad site. The area occupied by the equipment or facilities necessary for or incidental to drilling, production or plugging of one or more hydrocarbon development wells and upon which such drilling has or is intended to occur.
Executive Director. The chief executive officer of the Commission appointed pursuant to Article 15, Section 15.5, of the compact.
Facility. Any real or personal property, within or without the basin, and improvements thereof or thereon, and any and all rights of way, water, water rights, plants, structures, machinery, and equipment acquired, constructed, operated, or maintained for the beneficial use of water resources or related land uses or otherwise including, without limiting the generality of the foregoing, any and all things and appurtenances necessary, useful, or convenient for the control, collection, storage, withdrawal, diversion, release, treatment, transmission, sale, or exchange of water; or for navigation thereon, or the development and use of hydroelectric energy and power, and public recreational facilities; of the propagation of fish and wildlife; or to conserve and protect the water resources of the basin or any existing or future water supply source, or to facilitate any other uses of any of them.
Flowback. The return flow of water and formation fluids recovered from the wellbore of an unconventional natural gas or hydrocarbon development well following the release of pressures induced as part of the hydraulic fracture stimulation of a target geologic formation, and until the well is placed into production.
Formation fluids. Fluids in a liquid or gaseous physical state, present within the pore spaces, fractures, faults, vugs, caverns, or any other spaces of formations, whether or not naturally occurring or injected therein.
Governmental authority. A federal or state government, or any political subdivision, public corporation, public authority, special purpose district, or agency thereof.
Groundwater. Water beneath the surface of the ground within a zone of saturation, whether or not flowing through known and definite channels or percolating through underground geologic formations, and regardless of whether the result of natural or artificial recharge. The term includes water contained in quarries, pits and underground mines having no significant surface water inflow, aquifers, underground water courses and other bodies of water below the surface of the earth. The term also includes a spring in which the water level is sufficiently lowered by pumping or other means of drainage to eliminate the surface flow. All other springs are considered to be surface water.
Hydrocarbon development project. A project undertaken for the purpose of extraction of liquid or gaseous hydrocarbons from geologic formations, including but not limited to the drilling, casing, cementing, stimulation and completion of unconventional natural gas development wells, and all other activities and facilities associated with the foregoing or with the production, maintenance, operation, closure, plugging and restoration of such wells or drilling pad sites that require water for purposes including but not limited to, re-stimulation and/or re-completion of wells, fresh water injection of production tubing, use of coiled tubing units, pumping, cement hydration, dust suppression, and hydro-seeding or other revegetation activities, until all post-plugging restoration is completed in accordance with all applicable member jurisdiction requirements. The project includes water used for hydro-seeding or other revegetation activities, dust suppression and hydro-excavation of access roads and underground lines, as well as cleaning of tanks, related to a drilling pad site and centralized impoundments.
Medium capacity source. A ground or surface water source with a withdrawal of more than 20,000 but less than 100,000 gallons per day over a consecutive 30 day-average.
Member jurisdiction. The signatory parties as defined in the compact, comprised of the States of Maryland and New York, the Commonwealth of Pennsylvania, and the United States of America.
Member state. The States of Maryland and New York, and the Commonwealth of Pennsylvania.
Person. An individual, corporation, partnership, unincorporated association, and the like and shall have no gender and the singular shall include the plural. The term shall include a governmental authority and any other entity which is recognized by law as the subject of rights and obligations.
Pre-compact consumptive use. The maximum average daily quantity or volume of water consumptively used over any consecutive 30-day period prior to January 23, 1971.
Production fluids. Water or formation fluids recovered at the wellhead of a producing hydrocarbon well as a by-product of the production activity.
Project. Any work, service, activity or facility undertaken, which is separately planned, financed or identified by the Commission, or any separate facility undertaken or to be undertaken by the Commission or otherwise within a specified area, for the conservation, utilization, control, development, or management of water resources, which can be established and utilized independently, or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation.
Project sponsor. Any person who owns, operates or proposes to undertake a project. The singular shall include the plural.
Public water supply. A system, including facilities for collection, treatment, storage and distribution, that provides water to the public for human consumption, that:
(1) Serves at least 15 service connections used by year-round residents of the area served by the system; or
(2) Regularly serves at least 25 year-round residents.
Small capacity source. A ground or surface water source with a withdrawal of 20,000 gallons or less per day over a consecutive 30-day average.
Surface water. Water on the surface of the ground, including water in a perennial or intermittent watercourse, lake, reservoir, pond, spring, wetland, estuary, swamp or marsh, or diffused surface water, whether such body of water is natural or artificial.
Tophole water. Water that is brought to the surface while drilling through the strata containing fresh groundwater. Tophole water may contain drill cuttings typical of the formation being penetrated but may not be polluted or contaminated by additives, brine, oil or man induced conditions.
Unconventional natural gas development project. A hydrocarbon development project undertaken for the purpose of extraction of gaseous hydrocarbons from low permeability geologic formations utilizing enhanced drilling, stimulation or recovery techniques.
Undertake. Except for activities related to site evaluation, the initiation of construction or operation of a new or expanded project, or the operation of an existing project, that is subject to Commission review and approval.
Water or waters of the basin. Groundwater or surface water, or both, within the basin either before or after withdrawal.
Water resources.Includes all waters and related natural resources within the basin.
Wetlands. Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
Withdrawal.A taking or removal of water from any source within the basin for use within the basin.
§ 806.4 Projects requiring review and approval.
(a) Except for activities relating to site evaluation, to aquifer testing under § 806.12 or to those activities authorized under § 806.34, no person shall undertake any of the following projects without prior review and approval by the Commission. The project sponsor shall submit an application in accordance with subpart B of this part and shall be subject to the applicable standards in subpart C of this part.
(1) Consumptive use of water. Any consumptive use project described in this paragraph (a)(1) shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.22, and, to the extent that it involves a withdrawal from groundwater or surface water except a small capacity source, shall also be subject to the standards set forth in § 806.23 as the Commission deems necessary. Except to the extent that they involve the diversion of the waters of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. Provided the commission determines that low flow augmentation projects sponsored by the commission’s member states provide sufficient mitigation for agricultural water use to meet the standards set forth in § 806.22, and except as otherwise provided in this paragraph (a)(1), agricultural water use projects shall not be subject to the requirements of this paragraph (a)(1). Notwithstanding the foregoing, an agricultural water use project involving a diversion of the waters of the basin shall be subject to such requirements unless the property, or contiguous parcels of property, upon which the agricultural water use project occurs is located at least partially within the basin.
(i) Any project initiated on or after January 23, 1971, involving a consumptive water use of an average of 20,000 gallons per day (gpd) or more in any consecutive 30-day period.
(ii) With respect to projects previously approved by the Commission for consumptive use, any project that will involve an increase in a consumptive use above that amount which was previously approved.
(iii) With respect to projects with pre-compact consumptive use:
(A) Registered in accordance with subpart E of this part that increases its consumptive use by any amount over the quantity determined under § 806.44;
(B) Increasing its consumptive use to an average of 20,000 gpd or more in any consecutive 30-day period; or
(C) That failed to register its consumptive use in accordance with subpart E of this part.
(iv) Any project, regardless of when initiated, involving a consumptive use of an average of 20,000 gpd or more in any consecutive 30-day period, and undergoing a change of ownership, unless such project satisfies the requirements of paragraph (b) of this section or the existing Commission approval for such project is transferred pursuant to § 806.6.
(2) Withdrawals. Any project, including all of its sources, described in this paragraph (a)(2) shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in §§ 806.21 and 806.23. Hydroelectric projects, except to the extent that such projects involve a withdrawal, shall be exempt from the requirements of this section regarding withdrawals; provided, however, that nothing in this paragraph (a)(2) shall be construed as exempting hydroelectric projects from review and approval under any other category of project requiring review and approval as set forth in this section, § 806.5, or 18 CFR part 801.
(i) Any project initiated on or after July 13, 1978 for groundwater or November 11, 1995 for surface water withdrawing a consecutive 30-day average of 100,000 gpd or more from a groundwater or surface water source, or any project initiated after January 1, 2007 withdrawing a consecutive 30-day average of 100,000 gpd or more from a combination of sources.
(ii) Any new source added to projects with previously approved withdrawals by the Commission.
(iii) Any withdrawal increased above that amount which was previously approved by the Commission.
(iv) With respect to projects with grandfathered withdrawals:
(A) Registered in accordance with subpart E of this part that increases its withdrawal by any amount over the quantity determined under § 806.44;
(B) Increasing its withdrawal individually or in combination from all sources to an average of 100,000 gpd or more in any consecutive 30-day period; or
(C) That failed to register its withdrawals in accordance with subpart E of this part.
(v) Any project, regardless of when initiated, involving a withdrawal of a consecutive 30-day average of 100,000 gpd or more, from either groundwater or surface water sources, or in combination from both, and undergoing a change of ownership, unless such project satisfies the requirements of paragraph (b) of this section or the existing Commission approval for such project is transferred pursuant to § 806.6.
(3) Diversions. Except with respect to agricultural water use projects not subject to the requirements of paragraph (a)(1) of this section, the projects described in paragraphs (a)(3)(i) through (iv) of this section shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.24. The project sponsors of out-of-basin diversions shall also comply with all applicable requirements of this part relating to consumptive uses and withdrawals. The projects identified in paragraphs (a)(3)(v) and (vi) of this section shall be subject to regulation pursuant to § 806.22(f).
(i) Any project initiated on or after January 23, 1971, involving the diversion of water into the basin by any amount, or involving a diversion of water out of the basin of an average of 20,000 gallons of water per day or more in any consecutive 30-day period.
(ii) With respect to diversions previously approved by the Commission, any project that will increase a diversion above the amount previously approved.
(iii) With respect to diversions initiated prior to January 23, 1971, any project that will increase a diversion into the basin by any amount, or increase the diversion of water out of the basin by any amount.
(iv) Any project, regardless of when initiated, involving the diversion of water into the basin by any amount or involving a diversion of water out of the basin by an average of 20,000 gallons of water per day or more in any consecutive 30-day period, and undergoing a change of ownership, unless such project satisfies the requirements of paragraph (b) of this section or the Commission approval for such project is transferred pursuant to § 806.6.
(v) The interbasin diversion of any flowback or production fluids, tophole water and captured stormwater from hydrocarbon development projects from one drilling pad site to another drilling pad site for use in hydrofracture stimulation, provided it is handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction, shall not be subject to separate review and approval as a diversion under this paragraph if the generating or receiving pad site is subject to an Approval by Rule issued pursuant to § 806.22(f) and provided all monitoring and reporting requirements applicable to such approval are met.
(vi) The diversion of flowback or production fluids, tophole water and captured stormwater from a hydrocarbon development project for which an Approval by Rule has been issued pursuant to § 806.22(f), to an out-of-basin treatment or disposal facility authorized under separate governmental approval to accept flowback or production fluids, shall not be subject to separate review and approval as a diversion under this paragraph, provided all monitoring and reporting requirements applicable to the Approval by Rule are met and it is handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction.
(vii) The diversion of any flowback or production fluids, tophole water and captured stormwater from hydrocarbon development projects located outside the basin to an in-basin treatment or disposal facility authorized under separate government approval to accept flowback or production fluids, shall not be subject to separate review and approval as a diversion under this paragraph (a)(3), provided the fluids are handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction.
(viii) The diversion of drinking water and/or municipal wastewater out of the basin to a municipality on or straddling the basin divide if provided by or through a publicly or privately owned entity and regulated by the appropriate agency of the member jurisdiction shall not be subject to review and approval as a diversion under this paragraph (a)(3) of this section or as a consumptive use under paragraph (a)(1) of this section.
(ix) The diversion of drinking water and/or municipal wastewater into the basin to a municipality if provided by or through a publicly or privately owned entity and regulated by the appropriate agency of the member jurisdiction shall not be subject to review and approval as a diversion under this paragraph (a)(3).
(4) Crossing state boundaries. Any project on or crossing the boundary between two member states.
(5) Significant effect. Any project in a member state having a significant effect on water resources in another member state.
(6) Comprehensive plan. Any project which has been or is required to be included by the Commission in its comprehensive plan, or will have a significant effect upon the comprehensive plan.
(7) Determination. Any other project so determined by the commissioners or Executive Director pursuant to § 806.5 or 18 CFR part 801. Such project sponsors shall be notified in writing by the Executive Director.
(8) Natural gas. Any unconventional natural gas development project in the basin involving a withdrawal, diversion or consumptive use, regardless of the quantity.
(9) General permit. Any project subject to coverage under a general permit issued under § 806.17.
(b) Any project that did not require Commission approval prior to January 1, 2007, and undergoing a change of ownership, shall be exempt from the requirements of paragraph (a)(1)(iv), (a)(2)(v), or (a)(3)(iv) of this section if it is a:
(1) Transfer of a project to the transferor’s spouse or one or more lineal descendents, or any spouse of such lineal descendents, or to a corporation owned or controlled by the transferor, or the transferor’s spouse or lineal descendents, or any spouse of such lineal descendents, for so long as the combined ownership interest of the transferor, the transferor’s spouse and/or the transferor’s lineal descendent(s) and their spouses, continues to be 51 percent or greater; or
(2) Transfer of land used primarily for the raising of food, fiber or forage crops, trees, flowers, shrubs, turf products, livestock, or poultry, or for aquaculture, to the extent that, and for so long as, the project’s water use continues to be for such agricultural water use purposes.
§ 806.5 Projects that may require review and approval.
(a) The following projects, if not otherwise requiring review and approval under § 806.4, and provided that the project sponsor is notified in writing by the Executive Director, may be subject to Commission review and approval as determined by the Commission or the Executive Director:
(1) Projects that may affect interstate water quality.
(2) Projects within a member state that have the potential to affect waters within another member state. This includes, but is not limited to, projects which have the potential to alter the physical, biological, chemical or hydrological characteristics of water resources of interstate streams designated by the Commission under separate resolution.
(3) Projects that may have a significant effect upon the comprehensive plan.
(4) Projects not included in paragraphs (a)(1) through (a)(3) of this section, but which could have an adverse, adverse cumulative, or interstate effect on the water resources of the basin.
(b) Determinations by the Executive Director may be appealed to the Commission within 30 days after receipt of notice of such determination as set forth in § 808.2.
§ 806.6 Transfer of approvals.
(a) An existing Commission approval may be transferred to a new project sponsor by the Executive Director provided:
(1) The application for transfer is submitted within 90 days of a transfer or change in ownership of a project.
(2) The new project sponsor operates the project subject to the same terms and conditions of the existing approval pending approval of the transfer application.
(3) Any noncompliance by the existing project sponsor associated with the project or by the new project sponsor associated with other projects is resolved to the Commission’s satisfaction.
(4) If the existing approval is greater than 10 years old, the transfer shall be conditioned to require the submission of an updated metering and monitoring plan consistent with the requirements of § 806.30.
(5) If the existing project has an unapproved withdrawal, consumptive use and/or diversion listed in paragraph (b) of this section, the transfer shall be conditioned to require the submission of a new application for review and approval of the unapproved withdrawal, consumptive use and/or diversion consistent with §§ 806.4 and 806.14 and paragraph (d) of this section.
(6) Any modifications proposed by the new project sponsor shall be subject to a separate application and review process under §§ 806.14 and 806.18.
(b) Previously unapproved activities associated with a project subject to transfer under paragraph (a) of this section include:
(1) The project has an associated pre-compact consumptive water use that has not had mitigation approved by the Commission.
(2) The project has an associated diversion that was initiated prior to January 23, 1971.
(3) Projects registered under subpart E of this part.
(c) Upon undergoing a change of name that does not affect ownership or control of the project, the project sponsor must request a reissuance of the project’s approval by the Executive Director within 90 days from the date of the change.
(d) Any unapproved activities associated with a transferred project shall be subject to the following:
(1) The transfer approval shall be conditioned to include monitoring requirements under § 806.30 for all previously unapproved sources and activities.
(2) The transfer approval may include any other conditions consistent with this part deemed necessary by the Executive Director.
(3) The approved transfer will act as the unapproved activity’s temporary approval for a period of five years, at which point, the project sponsor shall submit an application for review and approval consistent with subpart B of this part.
(4) The Executive Director may require hydrogeologic evaluation under § 806.12 and/or formal review and approval of any of the previously unapproved sources sooner if those sources show a substantial likelihood of environmental harm, interference with other water users or water availability issues.
§ 806.7 Concurrent project review by member jurisdictions.
(a) The Commission recognizes that agencies of the member jurisdictions will exercise their review and approval authority and evaluate many proposed projects in the basin. The Commission will adopt procedures to assure compatibility between jurisdictional review and Commission review.
(b) To avoid duplication of work and to cooperate with other government agencies, the Commission may develop administrative agreements or other cooperative arrangements, in accordance with the procedures outlined in this part, with appropriate agencies of the member jurisdictions regarding joint review of projects. These agreements or arrangements may provide for joint efforts by staff, delegation of authority by an agency or the Commission, or any other matter to support cooperative review activities. Permits issued by a member jurisdiction agency shall be considered Commission approved if issued pursuant to an administrative agreement or other cooperative arrangement with the Commission specifically providing therefor.
§ 806.8 Waiver/modification.
The Commission may, in its discretion, waive or modify any of the requirements of this or any other part of its regulations if the essential purposes set forth in § 806.2 continue to be served.
Subpart B—Application Procedure
§ 806.10 Purpose of this subpart.
The purpose of this subpart is to set forth procedures governing applications required by §§ 806.4, 806.5, 806.6 and 18 CFR part 801.
§ 806.11 Preliminary consultations.
(a) Any project sponsor of a project that is or may be subject to the Commission’s jurisdiction is encouraged, prior to making application for Commission review, to request a preliminary consultation with the Commission staff for an informal discussion of preliminary plans for the proposed project. To facilitate preliminary consultations, it is suggested that the project sponsor provide a general description of the proposed project, a map showing its location and, to the extent available, data concerning dimensions of any proposed structures, anticipated water needs, and the environmental impacts.
(b) Except for project sponsors of electric power generation projects under § 801.12(c)(2) of this chapter, preliminary consultation is optional for the project sponsor (except with respect to aquifer test plans under § 806.12) but shall not relieve the sponsor from complying with the requirements of the compact or with this part.
§ 806.12 Hydrogeologic evaluation.
Evaluation of groundwater withdrawal projects requires a hydrogeologic evaluation, which may be an aquifer test in accordance with an approved plan or an alternative hydrogeologic evaluation in conformance with this section.
(a) Prior to submission of an application pursuant to § 806.13, a project sponsor seeking approval for a new groundwater withdrawal, a renewal of an expiring groundwater withdrawal, or an increase of a groundwater withdrawal shall perform an aquifer test.
(b) Unless an alternative hydrogeologic evaluation method is approved, the project sponsor shall prepare an aquifer test plan for prior review and approval by Commission staff before testing is undertaken. Such plan shall include a groundwater availability analysis to determine the availability of water during a 1-in-10-year recurrence interval.
(c) Unless otherwise specified, approval of a test plan is valid for two years from the date of approval.
(d) Approval of a test plan shall not be construed to limit the authority of the Commission to require additional testing or monitoring.
(e) The project sponsor may be required, at its expense, to provide temporary water supply if an aquifer test results in interference with an existing water use.
(f) Review of submittals under this section may be terminated by the Commission in accordance with the procedures set forth in § 806.16.
(g) This section does not apply to withdrawals related to mine dewatering, water resources remediation or AMD facilities, provided the activity is governed by another regulatory agency.
(h) Sources undergoing renewal that can provide an interpretative hydrogeologic report that documents the results of a Commission approved aquifer test or documentation of an approved prior waiver by the Commission may meet the requirements of this section for that previously approved groundwater source.
(i) In lieu of completing a Commission-approved aquifer test, the project sponsor may submit an Alternative Hydrogeologic Evaluation (AHE) that provides supporting information equivalent to that which would be obtained from completing an approved aquifer test under paragraph (a) of this section. This supporting information includes, but is not limited to, prior aquifer testing data, the withdrawal setting and location, existing site specific operational data, and prior Commission approved waivers of aquifer testing requirements. Commission staff may approve an AHE for a project or require completion of a Commission approved aquifer test in accordance with paragraph (a) of this section.
(j) This section does not apply to withdrawals from a small capacity source, unless otherwise determined by the Executive Director.
§ 806.13 Submission of application.
Sponsors of projects subject to review and approval of the Commission under § 806.4, § 806.5 or § 806.6, or project sponsors seeking renewal of an existing approval of the Commission, shall submit an application and applicable fee to the Commission, in accordance with this subpart.
§ 806.14 Contents of application.
(a) Applications for a new project or a major modification to an existing approved project shall include, but not be limited to, the following information and, where applicable, shall be subject to the requirements in paragraph (b) of this section and submitted on forms and in the manner prescribed by the Commission.
(1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.
(2) Project location, including latitude and longitude coordinates in decimal degrees accurate to within 10 meters, the project location displayed on a map, and evidence of legal access to the property upon which the project is proposed.
(3) Project description, including: purpose, proposed quantity to be withdrawn or consumed, if applicable, and description of all sources, consumptive uses and diversions related to the project.
(4) Anticipated impact of the project, including impacts on existing water withdrawals, nearby surface waters, and threatened or endangered species and their habitats.
(5) The reasonably foreseeable need for the proposed quantity of water to be withdrawn or consumed, including supporting calculations, and the projected demand for the term of the approval.
(6) A metering plan that adheres to § 806.30.
(7) Evidence of coordination and compliance with member jurisdictions regarding all necessary permits or approvals required for the project from other federal, state or local government agencies having jurisdiction over the project.
(8) Project estimated completion date and estimated construction schedule.
(9) Draft notices required by § 806.15.
(10) The Commission may also require the following information as deemed necessary:
(i) Engineering feasibility.
(ii) Ability of the project sponsor to fund the project.
(b) Additional information is required for a new project or a major modification to an existing approved project as follows.
(1) Surface water. (i) Water use and availability.
(ii) Project setting, including surface water characteristics, identification of wetlands, and site development considerations.
(iii) Description and design of intake structure.
(iv) Anticipated impact of the proposed project on local flood risk, recreational uses, fish and wildlife and natural environment features.
(v) For new projects and major modifications to increase a withdrawal, alternatives analysis for a withdrawal proposed in settings with a drainage area of 50 miles square or less, or in a water with exceptional water quality, or as required by the Commission.
(2) Groundwater. (i) With the exception other projects which are addressed in paragraph (b)(6) of this section, the project sponsor shall demonstrate that requirements of § 806.12 have been met by providing one of the following:
(A) An interpretive report that includes the results of a Commission approved aquifer test and an updated groundwater availability estimate if changed from the aquifer test plan,
(B) An approved AHE,
(C) A prior determination by the Commission staff under § 806.12(h) that the intent and requirements of § 806.12 have been met along with an updated groundwater availability estimate.
(ii) Water use and availability.
(iii) Project setting, including nearby surface water features.
(iv) Groundwater elevation monitoring plan for all production wells.
(v) Alternatives analysis as required by the Commission.
(3) Consumptive use. (i) Consumptive use calculations, and a mitigation plan consistent with § 806.22(b).
(ii) Water conservation methods, design or technology proposed or considered.
(iii) Alternatives analysis as required by the Commission.
(4) Into basin diversions. (i) Provide the necessary information to demonstrate that the proposed project will meet the standards in § 806.24(c).
(ii) Identification of the source and water quality characteristics of the water to be diverted.
(5) Out of basin diversions. (i) Provide the necessary information to demonstrate that the proposed project will meet the standards in § 806.24(b).
(ii) Project setting.
(6) Other projects. Other projects, including without limitation, mine dewatering, construction dewatering, water resources remediation projects, and AMD remediation facilities that qualify as a withdrawal.
(i) In lieu of aquifer testing, report(s) prepared for any other purpose or as required by other governmental regulatory agencies that provides a demonstration of the hydrogeologic and/or hydrologic effects and limits of said effects due to operation of the proposed project and effects on local water availability.
(ii) [Reserved]
(c) All applications for renewal of expiring approved projects, including those with minor or major modifications, shall include, but not be limited to, the following information, and, where applicable, shall be subject to the requirements in paragraph (d) of this section and submitted on forms and in the manner prescribed by the Commission.
(1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.
(2) Project location, including latitude and longitude coordinates in decimal degrees accurate to within 10 meters, the project location displayed on map, and evidence of legal access to the property upon which the project is located.
(3) Project description, to include, but not be limited to: Purpose, proposed quantity to be withdrawn or consumed if applicable, description of all sources, consumptive uses and diversions related to the project and any proposed project modifications.
(4) The reasonably foreseeable need for the requested renewal of the quantity of water to be withdrawn or consumed, including supporting calculations, and the projected demand for the term of the approval.
(5) An as-built and approved metering plan that conforms to § 806.30.
(6) Copies of permits from member jurisdictions regarding all necessary permits or approvals obtained for the project from other federal, state, or local government agencies having jurisdiction over the project.
(7) Copy of any approved mitigation or monitoring plan and any related as-built for the expiring project.
(8) Demonstration of registration of all withdrawals or consumptive uses in accordance with the applicable state requirements.
(9) Draft notices required by § 806.15.
(10) Changes to the facility design.
(11) Any proposed changes to the previously authorized purpose.
(d) Additional information is required for the following applications for renewal of expiring approved projects.
(1) Surface water. (i) Description and as-built of intake structure.
(ii) For renewals seeking to increase a withdrawal, alternatives analysis for a withdrawal proposed in settings with a drainage area of 50 miles square or less, or in a waterway with exceptional water quality, or as required by the Commission.
(2) Groundwater. (i) The project sponsor shall demonstrate that requirements of § 806.12 have been met by providing one of the following:
(A) Provide an interpretive report that includes the results of a Commission approved aquifer test and an updated GW availability estimate if changed from the aquifer test plan;
(B) An approved AHE; or
(C) A prior determination by the Commission staff under § 806.12(h) that the intent and requirements of § 806.12 have been met.
(ii) An interpretative report providing analysis and comparison of current and historic water withdrawal and groundwater elevation data with previously completed materials to demonstrate satisfaction of § 806.12, which may include a hydrogeologic report from previous aquifer testing, an approved AHE or prior determination of waiver of aquifer testing.
(iii) Current groundwater availability analysis assessing the availability of water during a 1-in-10 year drought recurrence interval under the existing conditions within the recharge area and predicted for term of renewal (i.e., other users, discharges, and land development within the groundwater recharge area).
(iv) Groundwater elevation monitoring plan for all production wells.
(v) Alternatives analysis as required by the Commission.
(3) Consumptive use. (i) Consumptive use calculations.
(ii) Mitigation plan, including method of consumptive use mitigation.
(4) Into basin diversion. (i) Provide the necessary information to demonstrate that the project will continue to meet the standards in § 806.24(c).
(ii) Identification of the source and current water quality characteristics of the water to be diverted.
(5) Out of basin diversion. (i) Provide the necessary information to demonstrate that the project will continue to meet the standards in § 806.24(b).
(ii) [Reserved]
(6) Other projects. Other projects, including without limitation, mine dewatering, water resources remediation projects, and AMD facilities that qualify as a withdrawal.
(i) In lieu of a hydrogeologic evaluation, a copy of approved report(s) prepared for any other purpose or as required by other governmental regulatory agencies that provides a demonstration of the hydrogeologic and/or hydrologic effects and limits of said effects due to operation of the project and effects on local water availability.
(ii) Any data or reports that demonstrate effects of the project are consistent with those reports provided in paragraph (d)(6)(i) of this section.
(iii) Demonstration of continued need for expiring approved water source and quantity.
(e) A report about the project prepared for any other purpose, or an application for approval prepared for submission to a member jurisdiction, may be accepted by the Commission provided the said report or application addresses all necessary items on the Commission’s form or listed in this section, as appropriate.
(f) Applications for minor modifications must be complete and will be on a form and in a manner prescribed by the Commission. Applications for minor modifications must contain the following:
(1) Description of the project;
(2) Description of all sources, consumptive uses and diversions related to the project;
(3) Description of the requested modification;
(4) Statement of the need for the requested modification; and
(5) Demonstration that the anticipated impact of the requested modification will not adversely impact the water resources of the basin.
(g) For any applications, the Executive Director or Commission may require other information not otherwise listed in this section.
§ 806.15 Notice of application.
(a) Except with respect to paragraphs (e), (f), and (g) of this section, any project sponsor submitting an application to the Commission shall provide notice thereof to the appropriate agency of the member State, each municipality in which the project is located, and the county and the appropriate county agencies in which the project is located. The project sponsor shall also publish notice of submission of the application at least once in a newspaper of general circulation serving the area in which the project is located. The project sponsor shall also meet any of the notice requirements set forth in paragraphs (b) through (d) of this section, if applicable. All notices required under this section shall be provided or published no later than 20 days after submission of the application to the Commission and shall be in a form and manner as prescribed by the Commission.
(b) For withdrawal applications submitted pursuant to § 806.4(a)(2) for new projects, major modifications, and renewals requesting an increase, the project sponsor shall also provide the notice required under paragraph (a) of this section to each property owner listed on the tax assessment rolls of the county in which such property is located and identified as follows:
(1) For groundwater withdrawal applications, the owner of any property that is located within a one-quarter mile radius of the proposed withdrawal location.
(2) For surface water withdrawal applications, the owner of any property that is riparian or littoral to the body of water from which the proposed withdrawal will be taken and is within a one-half mile radius of the proposed withdrawal location.
(3) For groundwater withdrawal applications, the Commission or Executive Director may allow notification of property owners through alternate methods where the property of such property owner is served by a public water supply.
(c) For projects involving a diversion of water out of the basin, the project sponsor shall also publish a notice of the submission of its application at least once in a newspaper of general circulation serving the area outside the basin where the project proposing to use the diverted water is located. For projects involving a diversion of water into the basin, the project sponsor shall also publish a notice of the submission of its application at least once in a newspaper of general circulation serving the area outside the basin where the withdrawal of water proposed for diversion is located.
(d) The project sponsor shall provide the Commission with a copy of the United States Postal Service return receipt or the verified return receipt from a comparable delivery service for the notifications to agencies of member States, municipalities, counties and appropriate county agencies required under this section. The project sponsor shall also provide certification on a form provided by the Commission that it has published the newspaper notice(s) required by this section and made the landowner notifications as required under paragraph (b) of this section, if applicable. The project sponsor shall maintain all proofs of publication and records of notices sent under this section for the duration of the approval related to such notices.
(e) For Notices of Intent (NOI) seeking coverage under a general permit, the project sponsor shall provide notice of the NOI to the appropriate agency of the member State and each municipality and county and appropriate county agencies in which the project is located and any additional notice identified in the general permit.
(f) For applications for minor modifications and approvals by rule under § 806.22(e), the project sponsor shall provide notice of the application to the appropriate agency of the member State and each municipality and county and appropriate county agencies in the which the project is located.
(g) For NOIs seeking an approval pursuant to § 806.22(f), the project sponsor shall provide notice of the application to the appropriate agency of the member State, each municipality, county and appropriate county agencies, and the owner of the property on or in which the drilling pad site is located. For requests for approval submitted under § 806.22(f)(13), the project sponsor shall provide notice of the application to the appropriate agency of the member State, each municipality, county and appropriate county agencies in which the public water supply is located.
§ 806.16 Completeness of application.
(a) The Commission’s staff shall review the application, and if necessary, request the project sponsor to provide any additional information that is deemed pertinent for proper evaluation of the project.
(b) An application deemed administratively incomplete will be returned to the project sponsor, who shall have 30 days to cure the administrative deficiencies. An application deemed technically deficient may be returned to the project sponsor, who shall have a period of time prescribed by Commission staff to cure the technical deficiencies. Failure to cure either administrative or technical deficiencies within the prescribed time may result in termination of the application process and forfeiture of any fees submitted.
(c) The project sponsor has a duty to provide information reasonably necessary for the Commission’s review of the application. If the project sponsor fails to respond to the Commission’s request for additional information, the Commission may terminate the application process, close the file and so notify the project sponsor. The project sponsor may reapply without prejudice by submitting a new application and fee.
§ 806.17 General permits.
(a) Coverage and purpose. The Commission may issue a general permit, in lieu of issuing individual approvals, for a specifically described category of diversions, water withdrawals and consumptive uses that:
(1) Involve the same or substantially similar types of operations or activities;
(2) Require the same limitations or operating conditions, or both;
(3) Require the same or similar monitoring and reporting; and
(4) Will result in minimal adverse impacts consistent with §§ 806.21 through 806.24.
(b) Procedure for issuance. (1) At least 30 days prior to the issuance of a general permit, the Commission shall publish notice in the
(2) At least 30 days shall be provided for interested members of the public and Federal, State and local agencies to provide written comments on a proposed general permit.
(3) The Commission or Executive Director may, in its discretion, hold a public hearing on a proposed general permit, taking into account the level of public interest and likelihood of controversy.
(4) The issuance of a general permit adopted by the Commission will be published in the
(c) Administration of general permits. General permits may be issued, amended, suspended, revoked, reissued or terminated under this section.
(1) Any general permit issued under this section shall set forth the applicability of the permit and the conditions that apply to any diversion, withdrawal or consumptive use authorized by such general permit.
(2) The Commission may fix a term to any general permit issued.
(3) A project sponsor shall obtain permission to divert, withdraw or consumptively use water in accordance with a general permit by filing a Notice of Intent (NOI) with the Commission, in a form and manner determined by the Commission.
(4) Approval of coverage under a general permit shall be determined by the Executive Director or by any other manner that the Commission shall establish for any general permit.
(5) The Commission may set a fee for NOIs to any general permit.
(6) A project sponsor shall provide notice for NOIs in accordance with § 806.15(h) and any additional notice requirements that the Commission may adopt for any general permit.
(7) The requirements of § 806.16 apply to the review of NOIs to any general permit.
(8) Upon reissuance or amendment of a general permit, all project sponsors permitted to divert, withdraw or consumptively use water in accordance with the previous general permit shall be permitted to continue to operate with the renewed or modified general permit unless otherwise notified by the Commission.
(9) Notice of receipt of NOIs shall be published on the Commission’s Web site and in any other manner that the Commission shall establish for any general permit.
(d) Denial of coverage. The Executive Director will deny or revoke coverage under a general permit when one or more of the following conditions exist:
(1) The project or project sponsor does not or can no longer meet the criteria for coverage under a general permit.
(2) The diversion, withdrawal or consumptive use, individually or in combination with other similar Commission regulated activities, is causing or has the potential to cause adverse impacts to water resources or competing water users.
(3) The project does not comport with § 806.21(a) or (b).
(4) The project includes other diversions, withdrawals or consumptive uses that require an individual approval and the issuance of both an individual approval and a general permit for the project would constitute an undue administrative burden on the Commission.
(5) The Executive Director determines that a project cannot be effectively regulated under a general permit and is more effectively regulated under an individual approval.
(e) Requiring an individual approval. If coverage is denied or revoked under paragraph (d) of this section, the project sponsor shall be notified in writing. The notice will include a brief statement for the reasons for the decision. If coverage under a general permit was previously granted, the notice will also include a deadline for submission of an application for an individual approval. Timely submission of a complete application will result in continuation of coverage of the applicable withdrawal, consumptive use or diversion under the general permit, until the Commission takes final action on the pending individual approval application.
(f) Action of the Commission. Action by the Executive Director denying or revoking coverage under a general permit under paragraph (d) of this section, or requiring an individual approval under paragraph (e) of this section, is not a final action of the Commission until the project sponsor submits and the Commission takes final action on an individual approval application.
§ 806.18 Approval modifications.
(a) General. A project sponsor shall submit an application for modification of a current approval prior to making a change in the design, operational plans, or use as presented in the application upon which the approval was originally issued, and that will affect the terms and conditions of the current approval.
(b) Applications for modification. A project sponsor may apply for a modification of a current approval by submitting an application for modification to the Commission.
(c) Minor modifications. The following are minor modifications:
(1) Correction of typographical or other errors;
(2) Changes to monitoring or metering conditions;
(3) Addition, amendment or removal of sources of water for consumptive use or project descriptions;
(4) Changes to the authorized water uses;
(5) Changes to conditions setting a schedule for developing, implementing, and/or reporting on monitoring, data collection and analyses;
(6) Changes to the design and minor changes to the location of intakes;
(7) Increases to total system limits that were established based on the projected demand of the project; and
(8) Modifications of extraction well network used for groundwater remediation systems.
(9) Adjustments to a term of an approval to align the approval with a member jurisdiction approval or another docket approval by the Commission.
(10) Changes to the method of consumptive use mitigation to payment of the mitigation fee, providing for discontinuance, use of storage or an adequate conservation release in accordance with a previous Commission determination.
(11) Addition of stormwater as a source of consumptive use, including an increase to the total consumptive use related to the stormwater use.
(12) Extension of the date of commencement of a withdrawal, diversion or consumptive use established under § 806.31(b).
(d) Major modifications. Major modifications are changes not considered to be minor modifications. Major modifications may include, but are not limited to:
(1) Increases in the quantity of water withdrawals, consumptive uses or diversions;
(2) Increases to peak day consumptive water use;
(3) Increases to the instantaneous withdrawal rate or changes from a single withdrawal rate to a varied withdrawal rate;
(4) Changes affecting passby flow requirements; and
(5) Changes that have the potential for adverse impacts to water resources or competing water users.
(e) Notice and approval. (1) Applications for modifications are subject to the notice requirements of § 806.15.
(2) The Commission or Executive Director may approve, approve with conditions or deny an application for minor modification, or direct that an application for major modification be made.
(3) The Commission may approve, approve with conditions or deny an application for major modification.
Subpart C—Standards for Review and Approval
§ 806.20 Purpose of this subpart.
The purpose of this subpart is to set forth general standards that shall be used by the Commission to evaluate all projects subject to review and approval by the Commission pursuant to §§ 806.4, 806.5 and 806.6, and to establish special standards applicable to certain water withdrawals, consumptive uses and diversions. This subpart shall not be construed to limit the Commission’s authority and scope of review. These standards are authorized under Sections 3.4(2), 3.4(8), 3.4(9), and 3.10 of the compact and are based upon, but not limited to, the goals, objectives, guidelines and criteria of the comprehensive plan.
§ 806.21 General standards.
(a) A project shall be feasible and not be detrimental to the proper conservation, development, management, or control of the water resources of the basin.
(b) The Commission may modify and approve as modified, or may disapprove, a project if it determines that the project is not in the best interest of the conservation, development, management, or control of the basin’s water resources, or is in conflict with the comprehensive plan.
(c) Disapprovals—other governmental jurisdictions. (1) The Commission may suspend the review of any application under this part if the project is subject to the lawful jurisdiction of any member jurisdiction or any political subdivision thereof, and such member jurisdiction or political subdivision has disapproved or denied the project. Where such disapproval or denial is reversed on appeal, the appeal is final, and the project sponsor provides the Commission with a certified copy of the decision, the Commission shall resume its review of the application. Where, however, an application has been suspended hereunder for a period greater than three years, the Commission may terminate its review. Thereupon, the Commission shall notify the project sponsor of such termination and that the application fee paid by the project sponsor is forfeited. The project sponsor may reactivate the terminated application by reapplying to the Commission, providing evidence of its receipt of all necessary governmental approvals and, at the discretion of the Commission, submitting new or updated information.
(2) The Commission may modify, suspend or revoke a previously granted approval if the project sponsor fails to obtain or maintain the approval of a member jurisdiction or political subdivision thereof having lawful jurisdiction over the project.
§ 806.22 Standards for consumptive uses of water.
(a) The project sponsors of all consumptive water uses subject to review and approval under § 806.4, § 806.5 or § 806.6 of this part shall comply with this section.
(b) Mitigation. All project sponsors whose consumptive use of water is subject to review and approval under § 806.4, § 806.5, § 806.6, or § 806.17 shall mitigate such consumptive use. Except to the extent that the project involves the diversion of the waters out of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. Mitigation may be provided by one or a combination of the following:
(1) During low flow periods as may be designated by the Commission for consumptive use mitigation.
(i) Reduce withdrawal from the approved source(s), in an amount equal to the project’s consumptive use, and withdraw water from alternative surface water storage or aquifers or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 45 continuous days such that impacts to nearby surface waters will not likely be at a magnitude or in a timeframe that would exacerbate present low flow conditions.
(ii) Release water for flow augmentation, in an amount equal to the project’s consumptive use, from surface water storage or aquifers, or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 45 continuous days such that impacts to nearby surface waters will not likely be at a magnitude or in a timeframe that would exacerbate present low flow conditions.
(iii) Discontinue the project’s consumptive use, which may include reduction of the project sponsor’s consumptive use to less than 20,000 gpd during periods of low flow. In any case of failure to provide the specified discontinuance, such project shall provide mitigation in accordance with paragraph (b)(3) of this section, for the calendar year in which such failure occurs, after which the Commission will reevaluate the continued acceptability of the discontinuance.
(2) Use, as a source of consumptive use water, surface storage that is subject to maintenance of a conservation release acceptable to the Commission. In any case of failure to provide the specified conservation release, such project shall provide mitigation in accordance with paragraph (3), below, for the calendar year in which such failure occurs, and the Commission will reevaluate the continued acceptability of the conservation release.
(3) Provide monetary payment to the Commission, for all water consumptively used over the course of a year, in an amount and manner prescribed by the Commission.
(4) Implement other alternatives approved by the Commission.
(c) Determination of manner of mitigation. The Commission will, in its sole discretion, determine the acceptable manner of mitigation to be provided by project sponsors whose consumptive use of water is subject to review and approval. Such a determination will be made after considering the project’s location, source characteristics, anticipated amount of consumptive use, proposed method of mitigation and their effects on the purposes set forth in § 806.2 of this part, and any other pertinent factors. The Commission may modify, as appropriate, the manner of mitigation, including the magnitude and timing of any mitigating releases, required in a project approval.
(d) Quality of water released for mitigation. The physical, chemical and biological quality of water released for mitigation shall at all times meet the quality required for the purposes listed in § 806.2, as applicable.
(e) Approval by rule for consumptive uses—(1) General rule. Except with respect to projects involving hydrocarbon development subject to the provisions of paragraph (f) of this section, any project that is solely supplied water for consumptive use by public water supply, stormwater, wastewater, or other reused or recycled water, or any combination thereof, may be approved by the Executive Director under this paragraph (e) in accordance with the following, unless the Executive Director determines that the project cannot be adequately regulated under this approval by rule.
(2) Notification of intent. Prior to undertaking a project or increasing a previously approved quantity of consumptive use, the project sponsor shall submit a notice of intent (NOI) on forms prescribed by the Commission, and the appropriate application fee, along with any required attachments.
(3) Time of notice. Within 20 days after submittal of an NOI under paragraph (e)(2) of this section, the project sponsor shall satisfy the notice requirements set forth in § 806.15.
(4) Metering, daily use monitoring, and quarterly reporting. The project sponsor shall comply with metering, daily use monitoring, and quarterly reporting as specified in § 806.30.
(5) Standard conditions. The standard conditions set forth in § 806.21 shall apply to projects approved by rule.
(6) Mitigation. The project sponsor shall comply with mitigation in accordance with paragraph (b)(1)(iii) or (b)(2) or (3) of this section.
(7) Compliance with other laws. The project sponsor shall obtain all necessary permits or approvals required for the project from other federal, state or local government agencies having jurisdiction over the project. The Commission reserves the right to modify, suspend or revoke any approval under this paragraph (e) if the project sponsor fails to obtain or maintain such approvals.
(8) Decision. The Executive Director may grant, deny, suspend, revoke, modify or condition an approval to operate under this approval by rule, or renew an existing approval by rule previously granted hereunder, and will notify the project sponsor of such determination, including the quantity of consumptive use approved. Use of small capacity sources or sources used only for supply of potable water may be appropriately included as a part of this approval by rule in the discretion of the Executive Director.
(9) Term. Approval by rule shall be effective upon written notification from the Executive Director to the project sponsor, shall expire 15 years from the date of such notification, and shall be deemed to rescind any previous consumptive use approvals.
(f) Approval by rule for consumptive use related to unconventional natural gas and other hydrocarbon development projects. (1) Any unconventional natural gas development project subject to review and approval under § 806.4(a)(8), or any other hydrocarbon development project subject to review and approval under § 806.4, § 806.5, or § 806.6, shall be subject to review and approval by the Executive Director under this paragraph (f) regardless of the source or sources of water being used consumptively.
(2) Notification of Intent: Prior to undertaking a project or increasing a previously approved quantity of consumptive use, the project sponsor shall submit a Notice of Intent (NOI) on forms prescribed by the Commission, and the appropriate application fee, along with any required attachments.
(3) Within 20 days after submittal of an NOI under paragraph (f)(2) of this section, the project sponsor shall satisfy the notice requirements set forth in § 806.15.
(4) The project sponsor shall comply with metering, daily use monitoring and quarterly reporting as specified in § 806.30, or as otherwise required by the approval by rule. The project sponsor shall submit a post-hydrofracture report in a form and manner as prescribed by the Commission.
(5) The project sponsor shall comply with the mitigation requirements set forth in § 806.22(b).
(6) Any flowback or production fluids utilized by the project sponsor for hydrofracture stimulation undertaken at the project shall be separately accounted for, but shall not be included in the daily consumptive use amount calculated for the project, or be subject to the mitigation requirements of § 806.22(b).
(7) The project sponsor shall obtain all necessary permits or approvals required for the project from other federal, state, or local government agencies having jurisdiction over the project. The Executive Director reserves the right to modify, suspend or revoke any approval under this paragraph (f) if the project sponsor fails to obtain or maintain such approvals.
(8) The project sponsor shall certify to the Commission that all flowback and production fluids have been re-used or treated and disposed of in accordance with applicable state and federal law.
(9) The Executive Director may grant, deny, suspend, revoke, modify or condition an approval to operate under this approval by rule, or renew an existing approval by rule granted hereunder, and will notify the project sponsor of such determination, including the sources and quantity of consumptive use approved. The issuance of any approval hereunder shall not be construed to waive or exempt the project sponsor from obtaining Commission approval for any water withdrawals or diversions subject to review pursuant to § 806.4(a). Any sources of water approved pursuant to this section shall be further subject to any approval or authorization required by the member jurisdiction.
(10) Approval by rule shall be effective upon issuance by the Executive Director to the project sponsor, shall expire five years from the date of such issuance, and supersede any previous consumptive use approvals to the extent applicable to the project.
(11) In addition to water sources approved for use by the project sponsor pursuant to § 806.4 or this section, for unconventional natural gas development or hydrocarbon development, whichever is applicable, a project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may utilize any of the following water sources at the drilling pad site, subject to such monitoring and reporting requirements as the Commission may prescribe:
(i) Tophole water encountered during the drilling process, provided it is used only for drilling or hydrofracture stimulation.
(ii) Captured stormwater, provided it is used only for drilling or hydrofracture stimulation.
(iii) Drilling fluids, formation fluids, flowback or production fluids obtained from a drilling pad site, production well site or hydrocarbon water storage facility, provided it is used only for hydrofracture stimulation, and is handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction.
(12) A project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may utilize a source of water, except a public water supply, approved by the Commission pursuant to § 806.4(a) and issued to persons other than the project sponsor, provided any such source is approved for use in unconventional natural gas development, or hydrocarbon development, whichever is applicable, the project sponsor has an agreement for its use and the project sponsor registers such source with the Commission on a form and in the manner prescribed by the Commission. Use of the registered source shall not commence until the Commission acknowledges in writing that the registration is proper and complete.
(13) A project sponsor issued an approval by rule pursuant to paragraph (f)(9) of this section may also utilize other sources of water, including but not limited to, water withdrawals or wastewater discharge not otherwise associated with an approval issued by the Commission pursuant to § 806.4(a), public water supplies, or another approval by rule issued pursuant to paragraph (f)(9) of this section, provided such sources are first approved by the Executive Director. Any request for approval shall be submitted on a form and in the manner prescribed by the Commission, shall satisfy the notice requirements set forth in § 806.15, and shall be subject to review pursuant to the standards set forth in subpart C of this part.
(14) [Reserved]
(15) The project sponsor shall provide a copy of any registration or source approval issued pursuant to this section to the appropriate agency of the applicable member jurisdiction. The project sponsor shall record on a daily basis, and report quarterly on a form and in a manner prescribed by the Commission, the quantity of water obtained from any source registered or approved hereunder. Any source approval issued hereunder shall also be subject to such monitoring and reporting requirements as may be contained in such approval or otherwise required by this part.
§ 806.23 Standards for water withdrawals.
(a) The project sponsors of all withdrawals subject to review and approval under § 806.4, § 806.5 or § 806.6 of this part shall comply with the following standards, in addition to those required pursuant to § 806.21.
(b) Limitations on and considerations for withdrawals. (1) The Commission may limit withdrawals to the amount (quantity and rate) of water that is needed to meet the reasonably foreseeable needs of the project sponsor.
(2) The Commission may deny an application, limit or condition an approval to ensure that the withdrawal will not cause significant adverse impacts to the water resources of the basin. The Commission may consider, without limitation, the following in its consideration of adverse impacts: Lowering of groundwater or stream flow levels; groundwater and surface water availability, including cumulative uses; rendering competing supplies unreliable; affecting other water uses; causing water quality degradation that may be injurious to any existing or potential water use; affecting fish, wildlife or other living resources or their habitat; causing permanent loss of aquifer storage capacity; affecting wetlands; or affecting low flow of perennial or intermittent streams.
(3) The Commission may impose limitations or conditions to mitigate impacts, including without limitation:
(i) Limit the quantity, timing or rate of withdrawal or level of drawdown, including requiring a total system limit.
(ii) Require the project sponsor to provide, at its own expense, an alternate water supply or other mitigating measures.
(iii) Require the project sponsor to implement and properly maintain special monitoring measures.
(iv) Require the project sponsor to implement and properly maintain stream flow protection measures.
(v) Require the project sponsor to develop and implement an operations plan acceptable to the Commission.
(4) The Commission may require the project sponsor to undertake the following, to ensure its ability to meet its present or reasonably foreseeable water needs from available groundwater or surface water without limitation:
(i) Investigate additional sources, interconnections or storage options to meet the demand of the project.
(ii) Submit a water resource development plan that shall include, without limitation, sufficient data to address any supply deficiencies, identify alternative water supply options, including interconnections, and support existing and proposed future withdrawals.
(5) For projects consisting of mine dewatering, water resources remediation, and AMD facilities that qualify as a withdrawal, review of adverse impacts will have limited consideration of groundwater availability, causing permanent loss of aquifer storage and lowering of groundwater levels provided these projects are operated in accordance with the laws and regulations of the member jurisdictions.
(6) Notwithstanding this paragraph, existing withdrawals that successfully complete the process in § 806.12(h) and (i) shall satisfy the standards in paragraph (b)(2) of this section. Further, evaluation of the withdrawal shall include reasonably foreseeable need and the need for total system limits, compliance with § 806.21, and any changes to the project or project location and setting.
(i) Approval of withdrawal limits on existing sources will not be set above the amount supported by the existing historical and current operating data or otherwise supported by the evaluation under § 806.12, and may be set at a different rate if supported by the evaluation required in this paragraph.
(ii) Any approvals shall include metering and measurement of parameters consistent with § 806.30, and may include conditions requiring monitoring of surface water features or other withdrawal sources.
(iii) If any reported metering or monitoring data or other information show a significant adverse impact to any consideration in paragraph (b)(2) of this section, the Commission may take actions necessary to eliminate the significant adverse impact, including but not limited to requiring the project to undertake more data collection and analysis, aquifer testing and/or conditioning the docket approval.
(7) Notwithstanding this paragraph, small capacity sources shall be subject to any withdrawal limit, including total system limit, set by the Commission and shall include metering and measurement of parameters consistent with § 806.30.
§ 806.24 Standards for diversions.
(a) The project sponsors of all diversions subject to review and approval under § 806.4, § 806.5 or § 806.6 of this part shall comply with the following standards.
(b) For projects involving out-of-basin diversions, the following requirements shall apply.
(1) Project sponsors shall:
(i) Demonstrate that they have made good faith efforts to develop and conserve sources of water within the importing basin, and have considered other reasonable alternatives to the diversion.
(ii) Comply with the general standards set forth in §§ 801.3, 806.21, and 806.22, and the applicable requirements of this part relating to consumptive uses and withdrawals.
(2) In deciding whether to approve a proposed diversion out of the basin, the Commission shall also consider and the project sponsor shall provide information related to the following factors:
(i) Any adverse effects and cumulative adverse effects the project may have on the ability of the Susquehanna River Basin, or any portion thereof, to meet its own present and future water needs.
(ii) The location, amount, timing, purpose and duration of the proposed diversion and how the project will individually and cumulatively affect the flow of any impacted stream or river, and the freshwater inflow of the Chesapeake Bay, including the extent to which any diverted water is being returned to the basin or the bay.
(iii) Whether there is a reasonably foreseeable need for the quantity of water requested by the project sponsor and how that need is measured against reasonably foreseeable needs in the Susquehanna River Basin.
(iv) The amount and location of water being diverted to the Susquehanna River Basin from the importing basin.
(v) The proximity of the project to the Susquehanna River Basin.
(vi) The project sponsor’s pre-compact member jurisdiction approvals to withdraw or divert the waters of the basin.
(vii) Historic reliance on sources within the Susquehanna River Basin.
(3) In deciding whether to approve a proposed diversion out of the basin, the Commission may also consider, but is not limited to, the factors set forth in paragraphs (i) through (v) of this paragraph (b)(3). The decision whether to consider the factors in this paragraph (b) and the amount of information required for such consideration, if undertaken, will depend upon the potential for the proposed diversion to have an adverse impact on the ability of the Susquehanna River Basin, or any portion thereof, to meet its own present and future needs.
(i) The impact of the diversion on economic development within the Susquehanna River Basin, the member states or the United States of America.
(ii) The cost and reliability of the diversion versus other alternatives, including certain external costs, such as impacts on the environment or water resources.
(iii) Any policy of the member jurisdictions relating to water resources, growth and development.
(iv) How the project will individually and cumulatively affect other environmental, social and recreational values.
(v) Any land use and natural resource planning being carried out in the importing basin.
(c) For projects involving into-basin diversions, the following requirements shall apply.
(1) Project sponsors shall:
(i) Provide information on the source, amount, and location of the water being diverted to the Susquehanna River Basin from the importing basin.
(ii) Provide information on the water quality classification, if any, of the Susquehanna River Basin stream to which diverted water is being discharged and the discharge location or locations.
(iii) Demonstrate that they have applied for or received all applicable withdrawal or discharge permits or approvals related to the diversion, and demonstrate that the diversion will not result in water quality degradation that may be injurious to any existing or potential ground or surface water use.
(2) In deciding whether to approve a proposed diversion into the basin, the Commission shall also consider and the project sponsor shall provide information related to the following factors:
(i) Any adverse effects and cumulative adverse effects the project may have on the Susquehanna River Basin, or any portion thereof, as a result of the introduction or potential introduction of invasive or exotic species that may be injurious to the water resources of the basin.
(ii) The extent to which the proposed diversion satisfies all other applicable general and specific standards set forth in subpart C of this part pertaining to withdrawals and consumptive use.
§ 806.25 Water conservation standards.
Any project sponsor whose project is subject to Commission approval under this part proposing to withdraw water either directly or indirectly (through another user) from groundwater or surface water sources, or both, shall comply with the following requirements:
(a) Public water supply. As circumstances warrant, a project sponsor of a public water supply shall:
(1) Reduce distribution system losses to a level not exceeding 20 percent of the gross withdrawal.
(2) Install meters for all users.
(3) Establish a program of water conservation that will:
(i) Require installation of water conservation devices, as applicable, by all classes of users.
(ii) Prepare and distribute literature to customers describing available water conservation techniques.
(iii) Implement a water pricing structure which encourages conservation.
(iv) Encourage water reuse.
(b) Industrial. Project sponsors who use water for industrial purposes shall:
(1) Designate a company representative to manage plant water use.
(2) Install meters or other suitable devices or utilize acceptable flow measuring methods for accurate determination of water use by various parts of the company operation.
(3) Install flow control devices which match the needs of the equipment being used for production.
(4) Evaluate and utilize applicable recirculation and reuse practices.
(c) Irrigation. Project sponsors who use water for irrigation purposes shall utilize irrigation systems properly designed for the sponsor’s respective soil characteristics, topography and vegetation.
(d) Effective date. Notwithstanding the effective date for other portions of this part, this section shall apply to all groundwater and surface water withdrawals initiated on or after January 11, 1979.
Subpart D—Terms and Conditions of Approval
§ 806.30 Monitoring.
The Commission, as part of the project review, shall evaluate the proposed methodology for monitoring consumptive uses, water withdrawals and mitigating flows, including flow metering devices, stream gages, and other facilities used to measure the withdrawals or consumptive use of the project or the rate of stream flow. If the Commission determines that additional flow measuring, metering or monitoring devices are required, these shall be provided at the expense of the project sponsor, installed in accordance with a schedule set by the Commission, and installed per the specifications and recommendations of the manufacturer of the device, and shall be subject to inspection by the Commission at any time.
(a) Project sponsors of projects that are approved under this part shall:
(1) Measure and record on a daily basis, or such other frequency as may be approved by the Commission, the quantity of all withdrawals, using meters or other methods approved by the Commission.
(2) Certify, at the time of installation and no less frequently than once every 5 years, the accuracy of all measuring devices and methods to within 5 percent of actual flow, unless specified otherwise by the Commission.
(3) Maintain metering or other approved methods so as to provide a continuous, accurate record of the withdrawal or consumptive use.
(4) Measure groundwater levels in all approved production and other wells, as specified by the Commission.
(5) Measure groundwater levels at additional monitoring locations, as specified by the Commission.
(6) Measure water levels in surface storage facilities, as specified by the Commission.
(7) Measure stream flows, passby flows or conservation releases, as specified by the Commission, using methods and at frequencies approved by the Commission.
(8) Perform other monitoring for impacts to water quantity, water quality and aquatic biological communities, as specified by the Commission.
(b) Reporting. (1) Project sponsors whose projects are approved under this section shall report to the Commission on a quarterly basis on forms and in a manner prescribed by the Commission all information recorded under paragraph (a) of this section, unless otherwise specified by the Commission.
(2) Project sponsors whose projects are approved under this section shall report to the Commission:
(i) Violations of withdrawal limits and any conditions of approvals, within 5 days of such violation.
(ii) Loss of measuring or recording capabilities required under paragraph (a)(1) of this section, within 5 days after any such loss.
§ 806.31 Term of approvals.
(a) Approvals issued under this part shall have a term equal to the term of any accompanying member jurisdiction approval regulating the same subject matter, but not longer than 15 years, unless an alternate period is provided for in the Commission approval. If there is no such accompanying member jurisdiction approval, or if no term is specified in such accompanying member jurisdiction approval, the term of a Commission approval issued under this part shall be no longer than 15 years or the anticipated life of the project, whichever is less, unless an alternate period is provided for in the Commission approval.
(b) Commission approval of a project shall expire three years from the date of such approval if the withdrawal, diversion or consumptive use has not been commenced, unless an alternate period is provided for in the docket approval or such 3-year period is extended in writing by the Commission upon written request from the project sponsor submitted no later than 120 days prior to such expiration. The Commission may grant an extension, for a period not to exceed two years, only upon a determination that the delay is due to circumstances beyond the project sponsor’s control and that there is a likelihood of project implementation within a reasonable period of time. The Commission may also attach conditions to the granting of such extensions, including modification of any terms of approval that the Commission may deem appropriate.
(c) If a withdrawal, diversion or consumptive use approved by the Commission for a project is discontinued for a period of five consecutive years, the approval shall be null and void, unless a waiver is granted in writing by the Commission, upon written request by the project sponsor demonstrating due cause and with notification thereof to the member jurisdiction in which the project is located, prior to the expiration of such period.
(d) If the Commission determines that a project has been abandoned, by evidence of nonuse for a period of time and under such circumstances that an abandonment may be inferred, the Commission may revoke the approval for such withdrawal, diversion or consumptive use.
(e) If a project sponsor submits an application to the Commission no later than six months prior to the expiration of its existing Commission docket approval or no later than one month prior to the expiration of its existing ABR or NOI approval, the existing approval will be deemed extended until such time as the Commission renders a decision on the application, unless the existing approval or a notification in writing from the Commission provides otherwise.
§ 806.32 Reopening/modification.
(a) Once a project is approved, the Commission, upon its own motion, or upon petition of the project sponsor or any interested party, may at any time reopen any project approval and make additional orders or otherwise modify or impose such additional conditions that may be necessary to mitigate or avoid adverse impacts or to otherwise protect the public health, safety, and welfare or water resources. Whenever a petition for reopening is filed by an interested party, the burden shall be upon that interested party to show, by a preponderance of the evidence, that a significant adverse impact or a threat to the public health, safety and welfare or water resources exists that warrants reopening of the docket. Notwithstanding the foregoing, any petition filed by a party who previously sought the same or functionally equivalent relief identified in the petition pursuant to the administrative appeals process under § 808.2 will not be eligible for consideration by the Commission absent new facts not known or readily discernable at the time of consideration of the petitioner’s previous request for administrative appeal filed pursuant to § 808.2.
(b) If the project sponsor fails to comply with any term or condition of a Commission approval, the Commission may issue an order suspending, modifying or revoking its approval of the project. The Commission may also, in its discretion, suspend, modify or revoke its approval if the project sponsor fails to obtain or maintain other federal, state or local approvals.
(c) For any previously approved project where interference occurs, the Commission may require a project sponsor to provide a temporary source of potable water at the project sponsor’s expense, pending a final determination of causation by the Commission.
(d) The Commission, upon its own motion, may at any time reopen any project approval and make additional corrective modifications that may be necessary.
§ 806.33 Interest on fees.
The Executive Director may establish interest to be paid on all overdue or outstanding fees of any nature that are payable to the Commission.
§ 806.34 Emergencies.
(a) Emergency certificates. The other requirements of these regulations notwithstanding, in the event of an emergency requiring immediate action to protect the public health, safety and welfare or to avoid substantial and irreparable injury to any person, property, or water resources when circumstances do not permit a review and determination in the regular course of the regulations in this part, the Executive Director, with the concurrence of the chairperson of the Commission and the commissioner from the affected member state, may issue an emergency certificate authorizing a project sponsor to take such action as the Executive Director may deem necessary and proper in the circumstances, pending review and determination by the Commission as otherwise required by this part. In the exercise of such authority, consideration should be given to actions deemed necessary to sustain human life, health and safety, or that of livestock or food, fiber or forage crops, the maintenance of electric system reliability to serve such needs, to avoid significant disruption of employment, or any other such priorities that the Commission may establish from time to time utilizing its authority under Section 11.4 of the Compact related to drought emergencies.
(b) Notification and application. A project sponsor shall notify the Commission, prior to commencement of the project, that an emergency certificate is needed. In the case of a project operating under an existing Commission approval seeking emergency approval to modify, waive or partially waive one or more conditions of such approval, notice shall be provided to the Commission prior to initiating the operational changes associated with the request. If immediate action, as defined by this section, is required by a project sponsor and prior notice to the Commission is not possible, then the project sponsor must contact the Commission within one (1) business day of the action. Notification may be by certified mail, facsimile, telegram, mailgram, electronic mail or other form of written communication. This notification must be followed within one (1) business day by submission of the following:
(1) A completed emergency application form or copy of the State or Federal emergency water use application if the project sponsor also is requesting emergency approval from either a state or federal agency.
(2) At a minimum, the application shall contain:
(i) Contact information.
(ii) Justification for emergency action (purpose).
(iii) Location map and schematic of proposed project, or in the case of a project operating under an existing Commission approval, the project approval reference and a description of the operational changes requested.
(iv) Desired term of emergency use.
(v) Source(s) of the water.
(vi) Quantity of water.
(vii) Flow measurement system (such as metering).
(viii) Use restrictions in effect (or planned).
(ix) Description of potential adverse impacts and mitigating measures.
(x) Appropriate fee, unless reduced, waived or delayed with the approval of the Executive Director.
(c) Emergency certificate issuance. The Executive Director shall:
(1) Review and act on the emergency request as expeditiously as possible upon receipt of all necessary information stipulated in paragraph (b)(2) of this section.
(2) With the concurrence of the chairperson of the Commission and the commissioner from the affected member state, issue an emergency certificate for a term not to extend beyond the next regular business meeting of the Commission where the extension of the certificate may be included in the notice for the next regularly scheduled public hearing for that business meeting.
(3) Include conditions in the emergency certificate which may include, without limitation, monitoring of withdrawal and/or consumptive use amounts, measurement devices, public notification, and reporting, to assure minimal adverse impacts to the environment and other users.
(d) Post approval. Actions following issuance of emergency certificates may include, but are not limited to, the following:
(1) The Commission may, by resolution, extend the term of the emergency certificate, upon presentation of a request from the project sponsor accompanied by appropriate evidence that the conditions causing the emergency persist.
(2) If the condition is expected to persist longer than the specified extended term, the project sponsor must submit an application to the Commission for applicable water withdrawal or consumptive use, or the emergency certificate will terminate as specified. If the project sponsor has a prior Commission approval for the project, the project sponsor must submit an application to modify the existing docket accordingly.
(e) Early termination. With the concurrence of the chairperson of the Commission and the commissioner from the affected member state, the Executive Director may terminate an emergency certificate earlier than the specified duration if it is determined that an emergency no longer exists and/or the certificate holder has not complied with one or more special conditions for the emergency withdrawal or consumptive water use.
(f) Restoration or mitigation. Project sponsors are responsible for any necessary restoration or mitigation of environmental damage or interference with another user that may occur as a result of the emergency action.
§ 806.35 Fees.
Project sponsors shall have an affirmative duty to pay such fees as established by the Commission to cover its costs of administering the regulatory program established by this part, including any extraordinary costs associated with specific projects.
Subpart E—Registration of Grandfathered Projects
§ 806.40 Applicability.
(a) This subpart is applicable to the following projects, which shall be known as grandfathered projects:
(1) The project has an associated average consumptive use of 20,000 gpd or more in any consecutive 30-day period all or part of which is a pre-compact consumptive use that has not been approved by the Commission pursuant to § 806.4.
(2) The project has an associated groundwater withdrawal average of 100,000 gpd or more in any consecutive 30-day period all or part of which was initiated prior to July 13, 1978, that has not been approved by the Commission pursuant to § 806.4.
(3) The project has an associated surface water withdrawal average of 100,000 gpd or more in any consecutive 30-day period all or part of which was initiated prior to November 11, 1995, that has not been approved by the Commission pursuant to § 806.4.
(4) The project (or an element of the project) has been approved by the Commission but has an associated consumptive use or water withdrawal that has not been approved by the Commission pursuant to § 806.4.
(5) Any project not included in paragraphs (a)(2) through (4) of this section that has a total withdrawal average of 100,000 gpd or more in any consecutive 30-day average from any combination of sources which was initiated prior to January 1, 2007, that has not been approved by the Commission pursuant to § 806.4.
(6) Any source associated with a project included in paragraphs (a)(2) through (5) of this section regardless of quantity.
(b) A project, including any source of the project, that can be determined to have been required to seek Commission review and approval under the pertinent regulations in place at the time is not eligible for registration as a grandfathered project.
§ 806.41 Registration and eligibility.
(a) Project sponsors of grandfathered projects identified in § 806.40 shall submit a registration to the Commission, on a form and in a manner prescribed by the Commission, by December 31, 2019.
(b) Any grandfathered project that fails to register under paragraph (a) of this section shall be subject to review and approval under § 806.4.
(c) Any project that is not eligible to register under paragraph (a) of this section shall be subject to review and approval under § 806.4.
(d) The Commission may establish fees for obtaining and maintaining registration in accordance with § 806.35.
(e) A registration under this subpart may be transferred pursuant to § 806.6.
§ 806.42 Registration requirements.
(a) Registrations shall include the following information:
(1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.
(2) Description of the project and site in terms of:
(i) Project location, including latitude and longitude coordinates in decimal degrees accurate to within 10 meters.
(ii) Project purpose.
(3) Identification of all sources of water, including the date the source was put into service, each source location (including latitude and longitude coordinates in decimal degrees accurate to within 10 meters), and if applicable, any approved docket numbers.
(4) Identification of current metering and monitoring methods for water withdrawal and consumptive use.
(5) Identification of current groundwater level or elevation monitoring methods at groundwater sources.
(6) All quantity data for water withdrawals and consumptive use for a minimum of the previous five calendar years. If the project sponsor registering submitted the water withdrawal and consumptive use data for the previous five calendar years to a member jurisdiction, that data will satisfy this requirement. A project sponsor registering may provide supplementary data related to water withdrawals and consumptive use quantities. If quantity data are not available, any information available upon which a determination of quantity could be made.
(7) For consumptive use, description of processes that use water, identification of water returned to the Basin, history of the use, including process changes, expansions and other actions that would have an impact on the amount of water consumptively used during the past five calendar years.
(8) Based on the data provided, the quantity of withdrawal for each individual source and consumptive use the project sponsor requests to be grandfathered by the Commission.
(9) Any ownership or name changes to the project since January 1, 2007.
(b) The Commission may require any other information it deems necessary for the registration process or waive any information required under paragraph (a) of this section for projects relying on a prior determination of the Commission.
§ 806.43 Metering and monitoring requirements.
(a) As a part of the registration process, the Commission shall review the current metering and monitoring for grandfathered withdrawals and consumptive uses.
(b) The Commission may require a metering and monitoring plan for the project sponsor to follow.
(c) Project sponsors, as an ongoing obligation of their registration, shall report to the Commission all information specified in the grandfathering determination under § 806.44 in a form and manner determined by the Commission. If water withdrawal and consumptive use quantity reporting is required by the member jurisdiction where the project is located, the Commission shall accept that reported quantity to satisfy the requirements of this paragraph (c), unless the Commission finds that additional data is needed that is not required by the member jurisdiction.
(d) Any data generated or collected under paragraph (c) of this section will be made available to the member jurisdictions in a manner and timeframe mutually agreeable to both the Commission and the jurisdiction.
§ 806.44 Determination of grandfathered quantities.
(a) For each registration submitted, the Executive Director shall determine the grandfathered quantity for each withdrawal source and consumptive use.
(b) In making a determination, the following factors should be considered:
(1) The withdrawal and use data and the peak consecutive 30-day average shown by the data;
(2) The reliability and accuracy of the data and/or the meters or measuring devices;
(3) Determination of reasonable and genuine usage of the project, including any anomalies in the usage;
(4) Whether the grandfathered amount includes an operational margin of safety; and
(5) Other relevant factors.
(c) The Executive Director, in lieu of a determination under paragraph (b) of this section, may accept a previous grandfathering determination by the Commission at the request of the project sponsor.
§ 806.45 Appeal of determination.
(a) A final determination of the grandfathered quantity by the Executive Director must be appealed to the Commission within 30 days from actual notice of the determination.
(b) The Commission shall appoint a hearing officer to preside over appeals under this section. Hearings shall be governed by the procedures set forth in part 808 of this chapter.
PART 807—WATER WITHDRAWAL REGISTRATION
§ 807.1 Requirement.
In addition to any other requirements of Commission regulations, and subject to the consent of the affected member state to this requirement, any person withdrawing or diverting in excess of an average of 10,000 gpd for any consecutive 30-day period, from ground or surface water sources, as defined in part 806 of this chapter, shall register the amount of this withdrawal with the Commission and provide such other information as requested on forms prescribed by the Commission.
§ 807.2 Time limits.
(a) Except for agricultural water use projects, all registration forms shall be submitted within one year after May 11, 1995, or within six months of initiation of the water withdrawal or diversion, whichever is later; provided, however, that nothing in this section shall limit the responsibility of a project sponsor to apply for and obtain an approval as may be required under part 806 of this chapter. All registered withdrawals shall re-register with the Commission within five years of their initial registration, and at five-year intervals thereafter, unless the withdrawal is sooner discontinued. Upon notice by the Executive Director, compliance with a registration or reporting requirement, or both, of a member state that is substantially equivalent to this requirement shall be considered compliance with this requirement.
(b) Project sponsors whose existing agricultural water use projects i.e., projects coming into existence prior to March 31, 1997) withdraw or divert in excess of an average of 10,000 gpd for any consecutive 30-day period from a ground or surface water source shall register their use no later than March 31, 1997. Thereafter, project sponsors of new projects proposing to withdraw or divert in excess of 10,000 gpd for any consecutive 30-day period from a ground or surface water source shall be registered prior to project initiation.
§ 807.3 Administrative agreements.
The Commission may complete appropriate administrative agreements or arrangements to carry out this registration requirement through the offices of member jurisdictions. Forms developed by the Commission shall apprise registrants of any such agreements or arrangements, and provide appropriate instructions to complete and submit the form.
§ 807.4 Effective date.
This part shall be effective on January 1, 2007.
§ 807.5 Definitions.
Terms used in this part shall be defined as set forth in § 806.3 of this chapter.
PART 808—HEARINGS AND ENFORCEMENT ACTIONS
Subpart A—Conduct of Hearings
§ 808.1 Public hearings.
(a) Required hearings. A public hearing shall be conducted in the following instances:
(1) Addition of projects or adoption of amendments to the comprehensive plan, except as otherwise provided by section 14.1 of the compact.
(2) Review and approval of diversions.
(3) Imposition or modification of rates and charges.
(4) Determination of protected areas.
(5) Drought emergency declarations.
(6) Hearing requested by a member jurisdiction.
(7) As otherwise required by sections 3.5(4), 4.4, 5.2(e), 6.2(a), 8.4, and 10.4 of the compact.
(b) Optional hearings. A public hearing may be conducted by the Commission or the Executive Director in any form or style chosen by the Commission or Executive Director in the following instances:
(1) Proposed rulemaking.
(2) Consideration of projects, except projects approved pursuant to memoranda of understanding with member jurisdictions.
(3) Adoption of policies and technical guidance documents.
(4) When it is determined that a hearing is necessary to give adequate consideration to issues related to public health, safety and welfare, or protection of the environment, or to gather additional information for the record or consider new information on a matter before the Commission.
(c) Notice of public hearing. At least 20 days before any public hearing required by the compact, notices stating the date, time, place and purpose of the hearing including issues of interest to the Commission shall be published at least once in a newspaper of general circulation in the area affected. In all other cases, at least 20 days prior to the hearing, notice shall be posted on the Commission Web site, sent to the parties who, to the Commission’s knowledge, will participate in the hearing, and sent to persons, organizations and news media who have made requests to the Commission for notices of hearings or of a particular hearing. With regard to rulemaking, hearing notices need only be forwarded to the directors of the New York Register, the Pennsylvania Bulletin, the Maryland Register and the
(d) Standard public hearing procedure. (1) Hearings shall be open to the public. Participants may be any person, including a project sponsor, wishing to appear at the hearing and make an oral or written statement. Statements shall be made a part of the record of the hearing, and written statements may be received up to and including the last day on which the hearing is held, or within 10 days or a reasonable time thereafter as may be specified by the presiding officer.
(2) Participants are encouraged to file with the Commission at its headquarters written notice of their intention to appear at the hearing. The notice should be filed at least three days prior to the opening of the hearing.
(e) Representative capacity. Participants wishing to be heard at a public hearing may appear in person or be represented by an attorney or other representative. A governmental authority may be represented by one of its officers, employees or by a designee of the governmental authority.
(f) Description of project. When notice of a public hearing is issued, there shall be available for inspection, consistent with the Commission’s Access to Records Policy, all plans, summaries, maps, statements, orders or other supporting documents which explain, detail, amplify, or otherwise describe the project the Commission is considering. Instructions on where and how the documents may be obtained will be included in the notice.
(g) Presiding officer. A public hearing shall be presided over by the Commission chair, the Executive Director, or any member or designee of the Commission or Executive Director. The presiding officer shall have full authority to control the conduct of the hearing and make a record of the same.
(h) Transcript. Whenever a project involving a diversion of water is the subject of a public hearing, and at all other times deemed necessary by the Commission or the Executive Director, a written transcript of the hearing shall be made. A certified copy of the transcript and exhibits shall be available for review during business hours at the Commission’s headquarters to anyone wishing to examine them. Persons wishing to obtain a copy of the transcript of any hearing shall make arrangements to obtain it directly from the recording stenographer at their expense.
(i) Joint hearings. The Commission may conduct any public hearings in concert with any other agency of a member jurisdiction.
§ 808.2 Administrative appeals.
(a) A project sponsor or other person aggrieved by a final action or decision of the Executive Director shall file a written appeal with the Commission within 30 days of the receipt of actual notice by the project sponsor or within 30 days of publication of the action in the
(1) A determination that a project requires review and approval under § 806.5;
(2) An approval or denial of an application for transfer under § 806.6;
(3) An approval of a Notice of Intent under a general permit under § 806.17;
(4) An approval of a minor modification under § 806.18;
(5) A determination regarding an approval by rule under § 806.22(e) or (f);
(6) A determination regarding an emergency certificate under § 806.34;
(7) Enforcement orders issued under § 808.14;
(8) A finding regarding a civil penalty under § 808.15(c);
(9) A determination of grandfathered quantity under § 806.44;
(10) A decision to modify, suspend or revoke a previously granted approval; and
(11) A records access determination made pursuant to Commission policy.
(b) The appeal shall identify the specific action or decision being appealed, the date of the action or decision, the interest of the person requesting the hearing in the subject matter of the appeal, and a statement setting forth the basis for objecting to or seeking review of the action or decision.
(c) Any request not filed on or before the applicable deadline established in paragraph (a) of this section hereof will be deemed untimely and such request for a hearing shall be considered denied unless the Commission, upon written request and for good cause shown, grants leave to make such filing nunc pro tunc; the standard applicable to what constitutes good cause shown being the standard applicable in analogous cases under Federal law. Receipt of requests for hearings pursuant to this section, whether timely filed or not, shall be submitted by the Executive Director to the commissioners for their information.
(d) Petitioners shall be limited to a single filing that shall set forth all matters and arguments in support thereof, including any ancillary motions or requests for relief. Issues not raised in this single filing shall be considered waived for purposes of the instant proceeding. Where the petitioner is appealing a final determination on a project application and is not the project sponsor, the petitioner shall serve a copy of the appeal upon the project sponsor within five days of its filing.
(e) The Commission will determine the manner in which it will hear the appeal. If a hearing is granted, the Commission shall serve notice thereof upon the petitioner and project sponsor and shall publish such notice in the
(1) The petitioner may also request a stay of the action or decision giving rise to the appeal pending final disposition of the appeal, which stay may be granted or denied by the Executive Director after consultation with the Commission chair and the member from the affected member State. The decision of the Executive Director on the request for stay shall not be appealable to the Commission under this section and shall remain in full force and effect until the Commission acts on the appeal.
(2) In addition to the contents of the request itself, the Executive Director, in granting or denying the request for stay, will consider the following factors:
(i) Irreparable harm to the petitioner.
(ii) The likelihood that the petitioner will prevail.
(f) The Commission shall grant the hearing request pursuant to this section if it determines that an adequate record with regard to the action or decision is not available, or that the Commission has found that an administrative review is necessary or desirable. If the Commission denies any request for a hearing, the party seeking such hearing shall be limited to such remedies as may be provided by the compact or other applicable law or court rule. If a hearing is granted, the Commission shall refer the matter for hearing to be held in accordance with § 808.3, and appoint a hearing officer.
(g) If a hearing is not granted, the Commission may set a briefing schedule and decide the appeal based on the record before it. The Commission may, in its discretion, schedule and hear oral argument on an appeal.
(h)(1) A request for intervention may be filed with the Commission by persons other than the petitioner within 20 days of the publication of a notice of the granting of such hearing in the
(2) Interveners shall have the right to be represented by counsel, to present evidence and to examine and cross-examine witnesses.
(i) Where a request for an appeal is made, the 90-day appeal period set forth in section 3.10 (6) and Federal reservation (o) of the compact shall not commence until the Commission has either denied the request for or taken final action on an administrative appeal.
§ 808.3 Hearings on administrative appeal.
(a) Unless otherwise agreed to by the Commission and the party requesting an administrative appeal under § 808.2 of this part, the following procedures shall govern the conduct of hearing on an administrative appeal.
(b) Hearing procedure. (1) The hearing officer shall have the power to rule upon offers of proof and the admissibility of evidence, to regulate the course of the hearing, to set the location or venue of the hearing, to hold conferences for the settlement or simplification of issues and the stipulation of facts, to determine the proper parties to the hearing, to determine the scope of any discovery procedures, to delineate the hearing issues to be adjudicated, and to take notice of judicially cognizable facts and general, technical, or scientific facts. The hearing officer may, with the consent of the parties, conduct all or part of the hearing or related proceedings by telephone conference call or other electronic means.
(2) The hearing officer shall cause each witness to be sworn or to make affirmation.
(3) Any party to a hearing shall have the right to present evidence, to examine and cross-examine witnesses, submit rebuttal evidence, and to present summation and argument.
(4) When necessary, in order to prevent undue prolongation of the hearing, the hearing officer may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses, or the extent of corroborative or cumulative testimony.
(5) The hearing officer shall exclude irrelevant, immaterial or unduly repetitious evidence, but the parties shall not be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received provided it shall be founded upon competent, material evidence which is substantial in view of the entire record.
(6) Any party may appear and be heard in person or be represented by an attorney at law who shall file an appearance with the Commission.
(7) Briefs and oral argument may be required by the hearing officer and may be permitted upon request made prior to the close of the hearing by any party. They shall be part of the record unless otherwise ordered by the presiding officer.
(8) The hearing officer may, as he/she deems appropriate, issue subpoenas in the name of the Commission requiring the appearance of witnesses or the production of books, papers, and other documentary evidence for such hearings.
(9) A record of the proceedings and evidence at each hearing shall be made by a qualified stenographer designated by the Executive Director. Where demanded by the petitioner, or any other person who is a party to the appeal proceedings, or where deemed necessary by the Hearing Officer, the testimony shall be transcribed. In those instances where a transcript of proceedings is made, two copies shall be delivered to the Commission. The petitioner or other persons who desire copies shall obtain them from the stenographer at such price as may be agreed upon by the stenographer and the person desiring the transcript.
(c) Staff and other expert testimony. The Executive Director shall arrange for the presentation of testimony by the Commission’s technical staff and other experts, as he/she may deem necessary or desirable, to be incorporated in the record to support the administrative action, determination or decision which is the subject of the hearing.
(d) Written testimony. If the direct testimony of an expert witness is expected to be lengthy or of a complex, technical nature, the presiding officer may order that such direct testimony be submitted to the Commission in sworn, written form. Copies of said testimony shall be served upon all parties appearing at the hearing at least 10 days prior to said hearing. Such written testimony, however, shall not be admitted whenever the witness is not present and available for cross-examination at the hearing unless all parties have waived the right of cross-examination.
(e) Assessment of costs. (1) Whenever a hearing is conducted, the costs thereof, as herein defined, shall be assessed by the presiding officer to the petitioner or such other party as the hearing officer deems equitable. For the purposes of this section, costs include all incremental costs incurred by the Commission, including, but not limited to, hearing officer and expert consultants reasonably necessary in the matter, stenographic record, rental of the hall and other related expenses.
(2) Upon the scheduling of a matter for hearing, the hearing officer shall furnish to the petitioner a reasonable estimate of the costs to be incurred under this section. The project sponsor may be required to furnish security for such costs either by cash deposit or by a surety bond of a corporate surety authorized to do business in a member state.
(3) A party to an appeal under this section who desires to proceed in forma pauperis shall submit an affidavit to the Commission requesting the same and showing in detail the assets possessed by the party, and other information indicating the reasons why that party is unable to pay costs incurred under this section or to give security for such costs. The Commission may grant or refuse the request based upon the contents of the affidavit or other factors, such as whether it believes the appeal or intervention is taken in good faith.
(f) Findings and report. The hearing officer shall prepare a report of his/her findings and recommendations based on the record of the hearing. The report shall be served by personal service or certified mail (return receipt requested) upon each party to the hearing or its counsel. Any party may file objections to the report. Such objections shall be filed with the Commission and served on all parties within 20 days after the service of the report. A brief shall be filed together with objections. Any replies to the objections shall be filed and served on all parties within 10 days of service of the objections. Prior to its decision on such objections, the Commission may grant a request for oral argument upon such filing.
(g) Action by the Commission. The Commission will act upon the findings and recommendations of the presiding officer pursuant to law. The determination of the Commission will be in writing and shall be filed in Commission records together with any transcript of the hearing, report of the hearing officer, objections thereto, and all plans, maps, exhibits and other papers, records or documents relating to the hearing.
§ 808.4 Optional joint hearing.
(a) The Commission may order any two or more public hearings involving a common or related question of law or fact to be consolidated for hearing on any or all of the matters at issue in such hearings.
(b) Whenever designated by a department, agency or instrumentality of a member jurisdiction, and within any limitations prescribed by the designation, a hearing officer designated pursuant to § 808.2 may also serve as a hearing officer, examiner or agent pursuant to such additional designation and may conduct joint hearings for the Commission and for such other department, agency or instrumentality. Pursuant to the additional designation, a hearing officer shall cause to be filed with the department, agency, or instrumentality making the designation, a certified copy of the transcript of the evidence taken before him/her and, if requested, of his/her findings and recommendations. Neither the hearing officer nor the Susquehanna River Basin Commission shall have or exercise any power or duty as a result of such additional designation to decide the merits of any matter arising under the separate laws of a member jurisdiction (other than the compact).
Subpart B—Compliance and Enforcement
§ 808.10 Scope of subpart.
This subpart shall be applicable where there is reason to believe that a person may have violated any provision of the compact, or the Commission’s rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. The said person shall hereinafter be referred to as the alleged violator.
§ 808.11 Duty to comply.
It shall be the duty of any person to comply with any provision of the compact, or the Commission’s rules, regulations, orders, approvals, docket conditions, staff directives or any other requirement of the Commission.
§ 808.12 Investigative powers.
(a) The Commission or its agents or employees, at any reasonable time and upon presentation of appropriate credentials, may inspect or investigate any person or project to determine compliance with any provisions of the compact, or the Commission’s rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. Such employees or agents are authorized to conduct tests or sampling; to take photographs; to perform measurements, surveys, and other tests; to inspect the methods of construction, operation, or maintenance; to inspect all measurement equipment; and to audit, examine, and copy books, papers, and records pertinent to any matter under investigation. Such employees or agents are authorized to take any other action necessary to assure that any project is constructed, operated and maintained in accordance with any provisions of the compact, or the Commission’s rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission.
(b) Any person shall allow authorized employees or agents of the Commission, without advance notice, at any reasonable time and upon presentation of appropriate credentials, and without delay, to have access to and to inspect all areas where a project is being constructed, operated, or maintained.
(c) Any person shall provide such information to the Commission as the Commission may deem necessary to determine compliance with any provisions of the compact, or the Commission’s rules, regulations, orders, approvals, docket conditions, or any other requirements of the Commission. The person submitting information to the Commission shall verify that it is true and accurate to the best of the knowledge, information, and belief of the person submitting such information. Any person who knowingly submits false information to the Commission shall be subject to civil penalties as provided in the compact and criminal penalties under the laws of the member jurisdictions relating to unsworn falsification to authorities.
§ 808.13 Notice of violation.
When the Executive Director or his/her designee issues a Notice of Violation (NOV) to an alleged violator, such NOV will:
(a) List the violations that are alleged to have occurred.
(b) State a date by which the alleged violator shall respond to the NOV.
§ 808.14 Orders.
(a) Whether or not an NOV has been issued, the Executive Director may issue an order directing an alleged violator to cease and desist any action or activity to the extent such action or activity constitutes an alleged violation, or may issue any other order related to the prevention of further violations, or the abatement or remediation of harm caused by the action or activity.
(b) If the project sponsor fails to comply with any term or condition of a docket or other approval, the commissioners or Executive Director may issue an order suspending, modifying or revoking approval of the docket. The commissioners may also, in their discretion, suspend, modify or revoke a docket approval if the project sponsor fails to obtain or maintain other federal, state or local approvals.
(c) The commissioners or Executive Director may issue such other orders as may be necessary to enforce any provision of the compact, the Commission’s rules or regulations, orders, approvals, docket conditions, or any other requirements of the Commission.
(d) It shall be the duty of any person to proceed diligently to comply with any order issued pursuant to this section.
(e) The Commission or Executive Director may enter into a Consent Order and Agreement with an alleged violator to resolve non-compliant operations and enforcement proceedings in conjunction with or separately from settlement agreements under § 808.18.
§ 808.15 Show cause proceeding.
(a) The Executive Director may issue an order requiring an alleged violator to show cause why a penalty should not be assessed in accordance with the provisions of this chapter and section 15.17 of the compact. The order to the alleged violator shall:
(1) Specify the nature and duration of violation(s) that is alleged to have occurred.
(2) Set forth the date by which the alleged violator must provide a written response to the order.
(3) Identify the civil penalty recommended by Commission staff.
(b) The written response by the project sponsor should include the following:
(1) A statement whether the project sponsor contests that the violations outlined in the Order occurred;
(2) If the project sponsor contests the violations, then a statement of the relevant facts and/or law providing the basis for the project sponsor’s position;
(3) Any mitigating factors or explanation regarding the violations outlined in the Order; and
(4) A statement explaining what the appropriate civil penalty, if any, should be utilizing the factors at § 808.16.
(c) Based on the information presented and any relevant policies, guidelines or law, the Executive Director shall make a written finding affirming or modifying the civil penalty recommended by Commission staff.
§ 808.16 Civil penalty criteria.
(a) In determining the amount of any civil penalty or any settlement of a violation, the Commission and Executive Director shall consider:
(1) Previous violations, if any, of any provision of the compact, the Commission’s rules or regulations, orders, approvals, docket conditions or any other requirements of the Commission.
(2) The intent of the alleged violator.
(3) The extent to which the violation caused adverse consequences to public health, safety and welfare or to water resources.
(4) The costs incurred by the Commission or any member jurisdiction relating to the failure to comply with any provision of the compact, the Commission’s rules or regulations, orders, approvals, docket conditions or any other requirements of the Commission.
(5) The extent to which the violator has cooperated with the Commission in correcting the violation and remediating any adverse consequences or harm that has resulted therefrom.
(6) The extent to which the failure to comply with any provision of the compact, the Commission’s rules or regulations, orders, approvals, docket conditions or any other requirements of the Commission was economically beneficial to the violator.
(7) The length of time over which the violation occurred and the amount of water used, diverted or withdrawn during that time period.
(8) The punitive effect of a civil penalty.
(b) The Commission and/or Executive Director retains the right to waive any penalty or reduce the amount of the penalty recommended by the Commission staff under § 808.15(a)(3) should it be determined, after consideration of the factors in paragraph (a) of this section, that extenuating circumstances justify such action.
§ 808.17 Enforcement of penalties, abatement or remedial orders.
Any penalty imposed or abatement or remedial action ordered by the Commission or the Executive Director shall be paid or completed within such time period as shall be specified in the civil penalty assessment or order. The Executive Director and Commission counsel are authorized to take such additional action as may be necessary to assure compliance with this subpart. If a proceeding before a court becomes necessary, the penalty amount determined in accordance with this part shall constitute the penalty amount recommended by the Commission to be fixed by the court pursuant to section 15.17 of the compact.
§ 808.18 Settlement by agreement.
(a) An alleged violator may offer to settle an enforcement action by agreement. The Executive Director may enter into settlement agreements to resolve an enforcement action. The Commission may, by Resolution, require certain types of enforcement actions or settlements to be submitted to the Commission for action or approval.
(b) In the event the violator fails to carry out any of the terms of the settlement agreement, the Commission or Executive Director may reinstitute a civil penalty action and any other applicable enforcement action against the alleged violator.
§ 808.19 Effective date.
This part shall be effective on January 1, 2007.
PARTS 809-899 [RESERVED]
CHAPTER XIII—TENNESSEE VALLEY AUTHORITY
PART 1300—STANDARDS OF CONDUCT FOR EMPLOYEES OF TENNESSEE VALLEY AUTHORITY
§ 1300.101 Cross references to employee ethical conduct standards and other applicable regulations.
Employees of the Tennessee Valley Authority (TVA) are subject to the executive branch-wide standards of ethical conduct at 5 CFR part 2635 and to the TVA regulations at 5 CFR part 7901 which supplement the executive branch-wide standards. In addition, certain TVA employees are subject to executive branch-wide financial disclosure regulations at 5 CFR part 2634.
§ 1300.102 Gambling, betting, and lotteries.
An employee shall not participate, while on Government- or TVA-owned or leased property or while on TVA duty, in any gambling activity including the operation of a gambling device, in conducting a lottery or pool, in a game for money or property, or in selling or purchasing a numbers slip or ticket. However, this section does not preclude activities:
(a) Necessitated by an employee’s law enforcement duties; or
(b) Under section 7 of Executive Order 12353 (47 FR 12785, 3 CFR, 1982 Comp., p. 139) and similar TVA-approved activities.
§ 1300.103 General conduct prejudicial to TVA.
An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to TVA.
§ 1300.104 Sexual harassment.
It is TVA policy that all TVA employees are responsible for assuring that the workplace is free from sexual harassment. Accordingly, all employees must avoid any action or conduct which could be viewed as sexual harassment including:
(a) Unwelcome sexual advances;
(b) Requests for sexual favors; and
(c) Other verbal or physical conduct of a sexual nature when:
(1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
(2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
(3) Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
§ 1300.105 National origin harassment.
It is TVA policy that all TVA employees are responsible for assuring that the workplace is free from national origin harassment. Accordingly, all employees must avoid any action or conduct which could be viewed as national origin harassment, including ethnic slurs and other verbal or physical conduct relating to an individual’s national origin when such conduct:
(a) Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
(b) Has the purpose or effect of unreasonably interfering with an individual’s work performance; or
(c) Otherwise adversely affects an individual’s employment opportunities.
§ 1300.106 Harassment on the basis of race, color, religion, age, or disability.
It is TVA policy that all TVA employees are responsible for assuring that the workplace is free from harassment on the basis of race, color, religion, age, or disability. Accordingly, all employees must avoid any action or conduct which could be viewed as harassment on these bases, including any verbal or physical conduct relating to an individual’s race, color, religion, age, or disability when such conduct:
(a) Has the purpose or effect of creating an intimidating, hostile, or offensive working environment;
(b) Has the purpose or effect of unreasonably interfering with an individual’s work performance; or
(c) Otherwise adversely affects an individual’s employment opportunities.
§ 1300.107 Financial interest exemptions.
In accordance with the provisions of 18 U.S.C. 208(b)(2), TVA has exempted the following financial interests of its employees from the requirements of 18 U.S.C. 208(a) upon the ground that such interests are too remote or too inconsequential to affect the integrity of such employees’ services. When any of the following exemptions applies only to a limited range of official actions, rather than all official acts, the range of actions will be specified within the language of the exemption.
(a) An investment in a business enterprise in the form of ownership of bonds, notes, and other evidences of indebtness which are not convertible into shares of preferred or common stock and have no warrants attached entitling the holder to purchase stock provided that the estimated market value of the interest does not exceed $5,000;
(b) An investment in the form of shares in the ownership of enterprises, including preferred and common stocks whether voting or nonvoting, or warrants to purchase such shares, or evidences of indebtedness convertible into such shares provided that the estimated market value of the interest does not exceed $5,000 and does not exceed 1 percent of the estimated market value of all the outstanding shares of the enterprise;
(c) Shares or investments in a well-diversified money market or mutual fund;
(d) Vested interests in a pension fund arising out of former employment and to which no further contributions are being made in the employee’s behalf, provided that, if the pension plan is a defined benefit plan, the assets of the plan are diversified. For the purpose of this provision, payments are not considered to be made “in the employee’s behalf” if they are made solely to maintain adequate plan funding rather than to provide specific benefits for the employee; or
(e) The interest an employee has by virtue of his or her personal or family use of electric power or through his or her interests in an organization using electric power generated or distributed by TVA, for purposes of his or her official actions at TVA in the process of developing or approving TVA power rate schedules.
PART 1301—PROCEDURES
Subpart A—Freedom of Information Act
§ 1301.1 General provisions.
(a) This subpart contains the rules that the Tennessee Valley Authority (TVA) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with TVA’s Privacy Act regulations as well as under this subpart.
(a) [Reserved]
§ 1301.2 Proactive disclosures.
Records that the FOIA requires agencies to make available for public inspection in an electronic format may be accessed through the TVA Web site. Each TVA organization is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each TVA organization shall ensure that its posted records and indices are reviewed and updated on an ongoing basis. TVA has a FOIA Requester Service Center and a FOIA Public Liaison who can assist individuals in locating TVA records. Contact information for the FOIA Requester Service Center and Public Liaison is available at https://www.tva.com/Information/Freedom-of-Information/FOIA-Contacts.
§ 1301.3 Requirements for making requests.
(a) General information. (1) TVA has a centralized system for responding to FOIA requests. To make a request for records, a requester should write directly to the Tennessee Valley Authority, FOIA Officer, 400 W. Summit Hill Drive (WT 7D), Knoxville, TN 37902-1401. TVA’s Guide to Information, which may be accessed on the TVA Web site at https://www.tva.com/Information/Freedom-of-Information/A-Guide-to-Information-About-The-Tennessee-Valley-Authority may be helpful in making your request.
(2) If you are making a request about yourself, see subpart B Privacy Act for additional requirements.
(3) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, TVA may require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.
(b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable TVA personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may help TVA identify the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Before submitting their requests, requesters may contact the TVA’s FOIA Officer or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. If after receiving a request the agency determines that the request does not reasonably describe the records sought, the agency shall inform the requester of what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the agency’s FOIA Officer or FOIA Public Liaison. If a request does not reasonably describe the records sought, the agency’s response to the request may be delayed.
(c) Format of records sought. Requests may specify the preferred form or format (including electronic formats) for the records you seek. TVA will accommodate your request if the record is readily reproducible in that form or format.
(d) Requester contact information. Requesters must provide contact information, such as their phone number, email address, and/or mailing address, to assist the agency in communicating with them and providing released records.
§ 1301.4 Responsibility for responding to requests.
(a) In general. TVA’s FOIA Officer or the FOIA Officer’s designee is responsible for responding to all FOIA requests. In determining which records are responsive to a request, TVA ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the agency will inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request.
(b) Authority to grant or deny requests. TVA’s FOIA Officer or the FOIA Officer’s designee is authorized to grant or to deny any requests for records that are maintained by TVA.
(c) Consultation, referral and coordination. When reviewing records located by TVA in response to a request, TVA will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, TVA shall proceed in one of the following ways:
(1) Consultation. When records originated with the agency processing the request, but contain within them information of interest to another agency or other Federal Government office, the agency processing the request should typically consult with that other entity prior to making a release determination.
(2) Referral. (i) When the agency processing the request believes that a different agency or component is best able to determine whether to disclose the record, the agency typically should refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if the agency processing the request and the originating agency jointly agree that the agency processing the request is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever an agency refers any part of the responsibility for responding to a request to another agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if an agency locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the agency that received the request should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the agency that originally received the request.
(d) Classified information. On receipt of any request involving classified information, the agency must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, the receiving agency must refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever an agency’s record contains information that has been derivatively classified (for example, when it contains information classified by another agency), the agency must refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.
(e) Timing of responses to consultations and referrals. All consultations and referrals received by TVA will be handled according to the date that the first agency received the perfected FOIA request.
(f) Agreements regarding consultations and referrals. TVA may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.
§ 1301.5 Timing of responses to requests.
(a) In general. TVA ordinarily will respond to requests according to their order of receipt and placement in an appropriate processing track as follows.
(b) Multitrack processing. TVA has established three tracks for handling requests and the track to which a request is assigned will depend on the nature of the request and the estimated processing time. Among the factors TVA may consider are the number of records requested, the number of pages involved in processing the request and the need for consultations or referrals. TVA will also designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (e) of this section. TVA will advise requesters of the track into which their request falls and, when appropriate, will offer the requesters an opportunity to narrow or modify their request so that it can be placed in a different processing track.
(1) Track 1. Requests that can be answered with readily available records or information. These are the fastest to process. These requests ordinarily will be responded to within 20 working days of receipt of a proper request by the FOIA Officer. The 20 working day time limit provided in this paragraph may be extended by TVA for unusual circumstances, as defined in paragraph (c) of this section, upon written notice to the person requesting the records.
(2) Track 2. Requests where we need records or information from other offices throughout TVA, where we must consult with other Government agencies, or when we must process a submitter notice as described in § 1301.8(d), but we do not expect that the decision on disclosure will be as time consuming as for requests in Track 3.
(3) Track 3. Requests which require a decision or input from another office or agency, extensive submitter notifications because of the presence of Business Information as defined in § 1301.8(b)(1), and a considerable amount of time will be needed for that, or the request is complicated or involves a large number of records. Usually, these requests will take the longest to process.
(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances,” and TVA extends the time limit on that basis, TVA will, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which TVA estimates processing of the request will be completed. Where the extension exceeds 10 working days, TVA will, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. TVA will make available its FOIA Officer or its FOIA Public Liaison for this purpose. A list of agency FOIA Public Liaisons is available at https://www.foia.gov/report-makerequest.html. TVA will also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services. As used in this paragraph, “unusual circumstances” means, but only to the extent reasonable necessary to the proper processing of the particular requests:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
(d) Aggregating requests. To satisfy unusual circumstances under the FOIA, TVA may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. TVA cannot aggregate multiple requests that involve unrelated matters.
(e) Expedited processing. (1) TVA will process requests and appeals on an expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;
(iii) The loss of substantial due process rights.
(2) A request for expedited processing may be made at any time. For a prompt determination, requests based on paragraphs (e)(1)(i) and (ii) of this section should be submitted to the TVA FOIA Officer. Requests based on paragraph (e)(1)(iii) of this section should be submitted in accordance with the agency’s requirements as described in § 1301.3. When making a request for expedited processing of an administrative appeal, the request should be submitted to the TVA Chief FOIA Officer and Appeals Official.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester’s sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public’s right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, TVA may waive the formal certification requirement.
(4) TVA will notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request must be given priority, placed in the processing track for expedited requests, and must be processed as soon as practicable. If a request for expedited processing is denied, the agency must act on any appeal of that decision expeditiously.
§ 1301.6 Responses to requests.
(a) In general. TVA, to the extent practicable, will communicate with requesters having access to the Internet electronically, such as email.
(b) Acknowledgments of requests. TVA will acknowledge the request in writing and assign it an individualized tracking number if it will take longer than 10 working days to process. TVA will include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.
(c) Estimated dates of completion and interim responses. Upon request, TVA will provide an estimated date by which the agency expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, TVA may provide interim responses, releasing the records on a rolling basis.
(d) Grants of requests. Once TVA determines it will grant a request in full or in part, it will notify the requester in writing. TVA will also inform the requester of any fees charged under § 1301.11 of this subpart and will disclose the requested records to the requester promptly upon payment of any applicable fees.
(e) Adverse determinations of requests. If TVA makes an adverse determination denying a request in any respect, it will notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing. In the event of an adverse determination, TVA will inform the requester of the availability of its FOIA Public Liaison to offer assistance to requesters.
(f) Content of denial. The denial must be signed by the head of the agency or their designee and must include:
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the agency in denying the request;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the denial may be appealed under § 1301.9(a) of this subpart, and a description of the appeal requirements.
(5) A statement notifying the requester of the assistance available from the agency’s FOIA Public Liaison and the dispute resolution services offered by OGIS.
(g) Markings on released documents. Records disclosed in part must be marked clearly to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted must also be indicated on the record, if technically feasible.
(h) Use of record exclusions. (1) In the event that TVA identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), TVA will confer with the Department of Justice, Office of Information Policy, to obtain approval to apply the exclusion.
(2) If an exclusion is invoked, TVA will maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
§ 1301.7 Exempt records.
(a) TVA’s records will be disclosed to any person upon request as provided in this section, except records that are exempt and are not made available if they are:
(1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, and
(ii) Are in fact properly classified pursuant to such Executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—
(i)(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(ii) If enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information—
(i) Could reasonably be expected to interfere with enforcement proceedings,
(ii) Would deprive a person of a right to a fair trial or an impartial adjudication,
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual;
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) The availability of certain classes of nonexempt records is deferred for such time as TVA may determine is reasonable necessary to avoid interference with the accomplishment of its statutory responsibilities. Such records include bids and information concerning the identity and number of bids received prior to bid opening and award; and all negotiations in progress involving contracts or agreements for the acquisition or disposal of real or personal property by TVA prior to the conclusion of such negotiations. Any reasonably segregable portion of an available record shall be provided to any person requesting such record after deletion of the portions which are exempt under this paragraph.
§ 1301.8 Confidential commercial information.
(a) Definitions—(1) Confidential commercial information means commercial or financial information obtained by TVA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required. (1) TVA will promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if TVA determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) TVA has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.
(2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, the agency may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
(d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:
(1) TVA determines that the information is exempt under the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, TVA will give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) TVA will specify a reasonable time period within which the submitter must respond to the notice referenced under paragraph (c)(1) of this section.
(2) If a submitter has any objections to disclosure, it should provide TVA a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.
(3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. TVA is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. TVA will consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever TVA decides to disclose information over the objection of a submitter, TVA will provide the submitter written notice, which will include:
(1) A statement of the reasons why each of the submitter’s disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of the records as TVA intends to release them; and
(3) A specified disclosure date, which must be a reasonable time after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, TVA will promptly notify the submitter.
(i) Requester notification. TVA will notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
§ 1301.9 Appeals.
(a) Requirements for making an appeal. A requester may appeal any adverse determinations to TVA’s office designated to receive FOIA appeals (FOIA Appeals Office). Examples of adverse determinations are provided in § 1301.6(e) of this subpart. Requesters can submit appeals by mail to TVA FOIA Appeals Official, Tennessee Valley Authority, 400 W. Summit Hill Drive (WT 7C), Knoxville, TN 37902-1401. The requester must make the appeal in writing and to be considered timely it must be postmarked within 90 calendar days after the date of the initial response. The appeal should clearly identify the agency determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope “Freedom of Information Act Appeal.”
(b) Adjudication of appeals. (1) The TVA Chief FOIA Officer and FOIA Appeals Official or designee will act on all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the Chief FOIA Officer and FOIA Appeals Official will take appropriate action to ensure compliance with applicable classification rules.
(c) Decisions on appeals. TVA will provide its decision on an appeal in writing. A decision that upholds TVA’s determination in whole or in part must contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the dispute resolution services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration as a non-exclusive alternative to litigation. If TVA’s decision is remanded or modified on appeal, TVA will notify the requester of that determination in writing. TVA will then further process the request in accordance with that appeal determination and will respond directly to the requester.
(d) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If TVA agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking review by a court of TVA’s adverse determination, a requester generally must first submit a timely administrative appeal.
§ 1301.10 Preservation of records.
TVA will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration. TVA will not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
§ 1301.11 Fees.
(a) In general. (1) TVA will charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters:
(i) Commercial use requesters;
(ii) Non-commercial scientific or educational institutions or news media requesters; and
(iii) All other requesters.
(2) Different fees are assessed depending on the category. Requesters may seek a fee waiver. TVA will consider requests for fee waivers in accordance with the requirements in paragraph (k) of this section. To resolve any fee issues that arise under this section, TVA may contact a requester for additional information. TVA will ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. TVA ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Tennessee Valley Authority, or by another method as determined by TVA.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. TVA’s decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester’s intended use of the information. TVA will notify requesters of their placement in this category.
(2) Direct costs are those expenses that TVA incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
(4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. TVA may seek verification from the requester that the request is in furtherance of scholarly research and TVA will advise requesters of their placement in this category.
(5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use. TVA will advise requesters of their placement in this category.
(6) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the Internet. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, agencies can also consider a requester’s past publication record in making this determination. TVA will advise requesters of their placement in this category.
(7) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
(8) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 1301.7 of this subpart, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(c) Charging fees. In responding to FOIA requests, TVA will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, agencies should not add any additional costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. TVA will charge search fees for all other requesters, subject to the restrictions of paragraph (d) of this section. TVA may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.
(ii) For each hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: For time spent by clerical employees, the charge is $14.90 per hour. For time spent by supervisory and professional employees, the charge is $34.30 per hour.
(iii) TVA will charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. TVA must notify the requester of the costs associated with creating such a program, and the requester must agree to pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by TVA at a Federal records center operated by the National Archives and Records Administration (NARA), TVA will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.
(2) Duplication. TVA will charge duplication fees to all requesters, subject to the restrictions of paragraph (d) of this section. TVA must honor a requester’s preference for receiving a record in a particular form or format where TVA can readily reproduce it in the form or format requested. Where photocopies are supplied, TVA will provide one copy per request at the cost of 10 cents per page for sheets no larger than 8
(3) Review. TVA will charge review fees to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by TVA to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with an agency’s re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) When TVA determines that a requester is an educational institution, non-commercial scientific institution, or representative of the news media, and the records are not sought for commercial use, it will not charge search fees.
(2)(i) If TVA fails to comply with the FOIA’s time limits in responding to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(ii) through (iv) of this section.
(ii) If TVA has determined that unusual circumstances, as defined by the FOIA, apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
(iii) If TVA has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, TVA may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. TVA must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and TVA must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, TVA may charge all applicable fees incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(4) Except for requesters seeking records for a commercial use, TVA must provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25.
(e) Notice of anticipated fees in excess of $25.00. (1) When TVA determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, TVA will notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, TVA will advise the requester accordingly. If the request is not for noncommercial use, the notice will specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided.
(2) If TVA notifies the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester’s statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. TVA is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but TVA estimates that the total fee will exceed that amount, TVA will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. TVA will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) TVA will make available its FOIA Officer or FOIA Public Liaison to assist any requester in reformulating a request to meet the requester’s needs at a lower cost.
(f) Charges for other services. Although not required to provide special services, if TVA chooses to do so as a matter of administrative discretion, the direct costs of providing the service will be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(g) Charging interest. TVA may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by TVA. TVA must follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(h) Aggregating requests. When TVA reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, TVA may aggregate those requests and charge accordingly. TVA may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, TVA will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated.
(i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, TVA cannot require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.
(2) When TVA determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. TVA may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any agency within 30 calendar days of the billing date, TVA may require that the requester pay the full amount due, plus any applicable interest on that prior request, and TVA may require that the requester make an advance payment of the full amount of any anticipated fee before TVA begins to process a new request or continues to process a pending request or any pending appeal. Where TVA has a reasonable basis to believe that a requester has misrepresented the requester’s identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which TVA requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of TVA’s fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, TVA will inform the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(2) TVA will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (k)(2)(i) through (iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:
(A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public’s understanding.
(B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester’s expertise in the subject area as well as the requester’s ability and intention to effectively convey information to the public must be considered. TVA will presume that a representative of the news media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, TVA will consider the following criteria:
(A) TVA must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters will be given an opportunity to provide explanatory information regarding this consideration.
(B) If there is an identified commercial interest, TVA must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. TVA ordinarily will presume that when a news media requester has satisfied factors paragraphs (k)(2)(i) and (ii), the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver must be granted for those records.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted to TVA and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.
§ 1301.12 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Subpart B—Privacy Act
§ 1301.21 Purpose and scope.
(a) The regulations in §§ 1301.21 to 1301.34 implement section 3 of the Privacy Act of 1974, 5 U.S.C. 552a, with respect to systems of records maintained by TVA. They provide procedures by which an individual may exercise the rights granted by the Act to determine whether a TVA system contains a record pertaining to him; to gain access to such records; to have a copy made of all or any portion thereof; and to request administrative correction or amendment of such records. They prescribe fees to be charged for copying records; establish identification requirements; list penalties provided by statute for certain violations of the Act; and establish exemptions from certain requirements of the Act for certain TVA systems or components thereof.
(b) Nothing in §§ 1301.21 to 1301.34 entitles an individual to any access to any information or record compiled in reasonable anticipation of a civil action or proceeding.
(c) Certain records of which TVA may have physical possession are the official records of another government agency which exercises dominion and control over the records, their content, and access thereto. In such cases, TVA’s maintenance of the records is subject to the direction of the other government agency. Except for a request for a determination of the existence of the record, when TVA receives requests related to these records, TVA will immediately refer the request to the controlling agency for all decisions regarding the request, and will notify the individual making the request of the referral.
§ 1301.22 Definitions.
For purposes of §§ 1301.21 to 1301.34:
(a) The Act means section 3 of the Privacy Act of 1974, 5 U.S.C. 552a;
(b) The terms individual, maintain, record, system of records, statistical record, and routine use have the meaning provided for by the Act;
(c) The term TVA system means a system of records maintained by TVA;
(d) The term TVA system notice means a notice of a TVA system published in the
(e) The term appellant means an individual who has filed an appeal pursuant to § 1301.29(a) from an initial determination refusing to amend a record on request of the individual;
(f) The term reviewing official means TVA’s Senior Vice President, Chief Human Resources Officer (or incumbent of a successor position), or another TVA official designated by the Senior Vice President in writing to decide an appeal pursuant to § 1301.29;
(g) The term day, when used in computing a time period, excludes Saturdays, Sundays, and legal public holidays.
§ 1301.23 Procedures for requests pertaining to individual records in a record system.
(a) An individual may, in accordance with this section (1) request a TVA determination whether a record retrieved by the individual’s name or other personal identifier is maintained in a TVA system, and (2) request access to such a record. A request for determination may be combined with a request for access.
(b) Requests under this section shall:
(1) Be in writing and signed by the individual seeking the determination or access;
(2) Include the individual’s mailing address;
(3) Name the TVA system as listed in the TVA system notice;
(4) Include any additional identifying information specified in the paragraph headed “Notification procedure” in the applicable TVA system notice;
(5) Specify whether the request is for determination only or for both determination and access; and
(6) Include such proof of identity as may be required by § 1301.24 and the applicable system notice. Requests may be presented in person or by mail. In-person requests shall be presented during normal TVA business hours, as set out in § 1301.24(g).
(c) Requests for determination only shall be presented to the official designated in the paragraph headed “Notification procedure” in the TVA system notice for the TVA system concerned. Requests for both determination and access shall be presented to the official designated in the paragraph headed “Access procedure” in the TVA system notice for the TVA system concerned. Certain TVA system notices designate officials at field locations of TVA systems. With respect to such TVA systems, an individual who believes his record is located at the field location may present a request to the designated official at the field location. If the record is not available at that field location, the request will be forwarded to the appropriate TVA office.
(d) If a request is for determination only, the determination will normally be made within 10 days after receipt of the request. If the determination cannot be made within 10 days after receipt of a request, the designated official will acknowledge the request in writing and state when the determination will be made. Upon making a determination, the designated official will notify the individual making the request whether the record exists. The notice will include any additional information necessary to enable the individual to request access to the record.
(e) A request which includes a request for access will be acknowledged within 10 days after receipt. If access can be granted as requested, the acknowledgment will provide a time and place for disclosure of the requested record. Disclosure will normally be made within 30 days of the date of the acknowledgement, but the designated official may extend the 30-day period for reasons found by him to be good cause. In case of an extension, TVA will notify the individual, in writing, that disclosure will be delayed, the reasons for delay, and the anticipated date on which the individual may expect the record to be disclosed. TVA will attempt to accommodate reasonable requests for disclosure at specified times and dates, as set forth in a request for access, so far as compatible with the conduct of TVA business.
§ 1301.24 Times, places, and requirements for identification of individuals making requests.
(a) TVA will require proof of identity, in accordance with this section, before it will disclose a record under § 1301.25 of this part to an individual requesting access to the record, and before it will disclose the existence of a record to a requester under § 1301.23 of this part, if TVA determines that disclosure of the existence of such record would constitute an unwarranted invasion of personal privacy.
(b) Identification normally required would be an identification card such as a valid state driver’s license or TVA or other employee identification card. A comparison of the signature of the requester with either the signature on the card or a signature in the record may be used to confirm identity.
(c) Because of the sensitivity of the subject matter in a TVA system, a TVA system notice may prescribe special identification requirements for the disclosure of the existence of or access to records in that TVA system. In such case, the special identification requirements prescribed in the TVA system notice shall apply in lieu of those prescribed by paragraph (b) of this section.
(d) If TVA deems it warranted by the nature of identification presented, the subject matter of the material to be disclosed, or other reasons found by TVA to be sufficient, TVA may require the individual requesting access to sign a statement asserting identity and stating that the individual understands that knowingly or willfully seeking or obtaining access to records about another person under false pretenses is punishable by a fine of up to $5,000.
(e) Where TVA is requested to provide access to records by mailing copies of records to the requester, the request shall contain or be accompanied by adequate identifying information to make it likely the requester is the person he purports to be and a notarized statement asserting identity and stating that the individual understands that knowingly or willfully seeking or obtaining access to records about another person under false pretenses is punishable by a fine of up to $5,000.
(f) Where sensitivity of record information may warrant (i.e., unauthorized access could cause harm or embarrassment to the individual) or disclosure by mail to third persons is requested, TVA may require in-person confirmation of identity. If in-person confirmation of identity is required, the individual may arrange with the designated TVA official to provide such identification at any of these TVA locations convenient to the individual: Knoxville, Nashville, and Chattanooga, Tennessee; Muscle Shoals, Alabama; Washington, DC, or another location agreed upon by the individual and the designated TVA official. Upon request the TVA official will provide an address and an appropriate time for such identification to be presented.
(g) In general, TVA offices located in the Eastern Time zone are open 8 a.m. to 4:45 p.m., and those in the Central Time zone 7:30 a.m. to 4:15 p.m. Offices are closed on Saturdays, Sundays, and the following holidays: New Year’s Day, Birthday of Martin Luther King, Jr., Presidents’ Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day.
§ 1301.25 Disclosure of requested information to individuals.
(a) All disclosure and examination of records shall normally be made in the presence of a TVA representative. If an individual wishes to be accompanied by a third person of the individual’s choosing when the record is disclosed, TVA may require the individual to furnish TVA, in advance of disclosure of the record, a statement signed by the individual authorizing discussion and disclosure of the record in the presence of the accompanying person. If desired by the individual, TVA shall provide copies of any documents reviewed in the record which are requested at the time of review. Fees shall be charged for such copies in accordance with the fee schedule in § 1301.31, and shall be payable prior to delivery of the copies to the individual.
(b) Where permitted by § 1301.24, copies of an individual’s record will be made available by mail. A charge for copies will be made in accordance with § 1301.31 of this part. All fees due shall be paid prior to mailing of the materials. However, if TVA is unable to allow in-person review of the record, the first copy will be made available without charge.
§ 1301.26 Special procedures—medical records.
If, in the judgment of TVA, the transmission of medical records, including psychological records, directly to a requesting individual could have an adverse effect upon such individual, TVA may refuse to disclose such information directly to the individual. TVA will, however, disclose this information to a licensed health care provider or legal representative designated by the individual in writing who should then provide the records to the individual along with any necessary interpretations.
§ 1301.27 Requests for correction or amendment of record.
(a) An individual may request amendment of records pertaining to him in a TVA system to the extent permitted by the Act in accordance with this section. A request for amendment shall:
(1) Be in writing and signed by the individual seeking the amendment;
(2) Name the TVA system in which the record is maintained;
(3) Describe the item or items of information to be amended;
(4) Describe the nature of the amendment requested; and
(5) Give the reasons for the requested change.
(b) Requests shall be made to the official designated in the paragraph headed “Contesting record procedures” in the TVA system notice for the TVA system concerned. Before considering a request, TVA may require proof of identity of the requester similar to that required under § 1301.24 to gain access to the record.
(c) The individual requesting amendment has the responsibility of providing TVA with evidence of why his record should be amended, and must provide adequate evidence to TVA to justify his request.
(d) The provisions of §§ 1301.21 to 1301.34 of this part do not permit the alteration of evidence presented or to be presented in the course of judicial or administrative proceedings; neither do they permit collateral attack on a prior judicial or administrative action, or provide a collateral remedy for a matter otherwise judicially or administratively cognizable.
§ 1301.28 TVA review of request for correction or amendment of record.
(a) TVA will acknowledge a request for amendment within 10 days of receipt. The acknowledgement will be in writing, will request any additional information TVA requires to determine whether to make the requested correction or amendment, and will indicate the date by which TVA expects to make its initial determination.
(b) TVA will, except in unusual circumstances, complete its consideration of requests to amend records within 30 days. If more time is deemed necessary, TVA will notify the individual of the delay and of the expected date of completion of the review.
(c) If TVA determines that a record should be corrected or amended, in whole or in part, in accordance with a request, it will advise the requesting individual in writing of its determination, and correct or amend the record accordingly. If an accounting of disclosures has been made, TVA will, to the extent of the accounting, inform prior recipients of the record of the fact that the correction was made and the substance of the correction.
(d) If TVA, after initial consideration of a request, determines that a record should not be corrected or amended, in whole or in part, in accordance with a request, it will notify the individual in writing of its refusal to amend the record and the reasons therefor. The notification will inform the individual that the refusal may be appealed administratively and will advise the individual of the procedures for such appeals.
§ 1301.29 Appeals on initial adverse agency determination on correction or amendment.
(a) An individual may appeal an initial determination refusing to amend that individual’s record in accordance with this section. An appeal must be taken within 20 days of receipt of notice of TVA’s initial refusal to amend the record and is taken by delivering a written notice of appeal to the Privacy Act Reviewing Official, Tennessee Valley Authority, Knoxville, Tennessee 37902-1401. Such notice shall be signed by the appellant and shall state:
(1) That it is an appeal from a denial of a request to amend the individual’s records under these regulations and under the Privacy Act of 1974;
(2) The reasons why the appellant believes the denial to have been erroneous;
(3) The date on which the denial was issued; and
(4) The date on which the denial was received by the appellant.
(b) Appeals shall be determined by a reviewing official. Such determination may be based on information provided for the initial determination; any additional information which TVA or the appellant may desire to provide; and any other material the reviewing official deems relevant to the determination. The reviewing official, in his sole discretion, may request TVA or the appellant to provide additional information deemed relevant to the appeal. The appellant will be given an opportunity to respond to any information provided by TVA or independently procured by the reviewing official. If in the sole discretion of the reviewing official a hearing is deemed necessary for resolution of the appeal, the reviewing official may conduct a hearing upon notice to TVA and the appellant, at which both TVA and the appellant shall be afforded an opportunity to be heard on the appeal. The rules governing any hearing will be set forth in the notice of hearing.
(c) The reviewing official shall make final determination on the appeal within 30 days after it is received unless such period is extended for good cause. If the reviewing official finds good cause for an extension, TVA will inform the appellant in writing of the reason for the delay and of the approximate date on which the reviewing official expects to complete his determination of the appeal.
(d) If the reviewing official determines that a record should be amended in whole or in part in accordance with an appellant’s request, TVA will inform the appellant in writing of its determination and correct or amend the record. If an accounting of disclosures has been made, TVA will, to the extent of the accounting, inform prior recipients of the record of the fact that the correction was made and of the substance of the correction.
(e) If the reviewing official determines not to amend a record, in whole or in part, in accordance with a request, TVA will advise the individual:
(1) Of its refusal to amend and the reasons therefor;
(2) Of the appellant’s right to file a concise statement of reasons for disagreement with the refusal as set out in paragraph (f) of this section;
(3) Of the procedures for filing a statement of disagreement;
(4) That any statement of disagreement will be made available to anyone to whom the record is subsequently disclosed together with any statement by TVA summarizing its reasons for refusing to amend the record;
(5) That prior recipients of the disputed record will be provided a copy of any statement of dispute to the extent that an accounting of disclosures was maintained; and
(6) Of his or her right to seek judicial review of the agency’s refusal to amend a record.
(f) If the reviewing official’s final determination of an appeal is a refusal to correct or amend a record, in whole or in part, in accordance with the request, the appellant may file with TVA a concise statement setting forth the reasons for his or her disagreement with the refusal of TVA to amend the records. Such statements normally should not exceed 100 words. A statement of disagreement should be submitted within 30 days of receipt of notice of the reviewing official’s decision on the appeal, and should be sent to system manager. In any disclosure containing information about which the individual has filed a statement of disagreement which occurs after the filing of the statement, TVA will clearly note any portion of the record which is disputed and provide copies of the statement with the disclosure. Copies of the statement will also be furnished to persons or other agencies to whom the record has been disclosed to the extent that an accounting of disclosures was made. TVA may attach to the statement of disagreement a brief summary of TVA’s reasons for refusing to amend the record. Such summaries will be disclosed to the individual, but are not subject to amendment.
§ 1301.30 Disclosure of record to persons other than individual to whom it pertains.
For purposes of §§ 1301.21 to 1301.34, the parent of any minor or the legal guardian of any individual who has been declared incompetent due to physical or mental incapacity or age by a court of competent jurisdiction may act on behalf of the individual. TVA may require proof of the relationship prior to allowing such action. The parent or legal guardian may not act where the individual concerned objects to the action of the parent or legal guardian, unless a court otherwise orders.
§ 1301.31 Fees.
(a) Fees to be charged, if any, to any individual for making copies of his or her record exclude the cost of any search and review of the record. The following fees are applicable:
(1) For reproduction of material consisting of sheets no larger than 8
(2) For reproduction of other materials, the direct cost of photostats or other means necessarily used for duplication.
(b) [Reserved]
§ 1301.32 Penalties.
Section 552a(i), Title 5, United States Code provides that:
(1) Criminal Penalties. Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.
(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.
§ 1301.33 General exemptions.
Individuals may not have access to records maintained by TVA but which were provided by another agency which has determined by regulation that such information is subject to general exemption under 5 U.S.C. 552a(j). If such exempt records are within a request for access, TVA will advise the individual of their existence and of the name and address of the source agency. For any further information concerning the record and the exemption, the individual must contact that source agency.
§ 1301.34 Specific exemptions.
(a) The TVA system Nuclear Access Authorization and Fitness for Duty Records is exempt from subsections (d); (e)(4)(H); and (f)(2), (3), and (4) of 5 U.S.C. 522a (section 3 of the Privacy Act of 1974) to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, and to the extent that disclosure of testing or examination material would compromise the objectivity or fairness of the testing or examination process. This exemption is pursuant to 5 U.S.C. 552a (k)(5) and (6).
(b)(1) The TVA systems “Apprentice Training Record System-TVA,” “Consultant and Contractor Records-TVA,” “Employment Applicant Files-TVA,” “Personnel Files-TVA,” and “Nuclear Quality Assurance Personnel Records-TVA” are exempted from subsections (d); (e)(4)(H); (f)(2), (3), and (4) of 5 U.S.C. 552a and corresponding sections of these rules to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. These TVA systems are exempted pursuant to section (k)(5) of 5 U.S.C. 552a (section 3 of the Privacy Act).
(2) Each of these TVA systems contain reference letters and information concerning employees and other individuals who perform services for TVA. TVA has received this information in the past under both express and implied promises of confidentiality and consistent with the Privacy Act these promises will be honored. Pledges of confidentiality will be necessary in the future to ensure that unqualified or unsuitable individuals are not selected for TVA positions. Without the ability to make these promises, a potential source of information may be unwilling to provide needed information, or may not be sufficiently frank to be of value in personnel screening.
(c)(1) The TVA systems “Apprentice Training Record System-TVA,” “Consultant and Contractor Records-TVA,” “Employment Applicant Files-TVA,” and “Personnel Files-TVA,” are exempted from subsections (d); (e)(4)(H); (f)(2), (3), and (4) of 5 U.S.C. 552a and corresponding sections of these rules to the extent that disclosure of testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service would compromise the objectivity or fairness of the testing or examination process. These systems are exempted pursuant to section (k)(6) of 5 U.S.C. 552a (section 3 of the Privacy Act).
(2) This material is exempted because its disclosure would reveal information about the testing process which would potentially give an individual an unfair competitive advantage in selection based on test performance.
(d) The TVA system OIG Investigative Records is exempt from subsections (c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 U.S.C. 552a (section 3 of the Privacy Act) and corresponding sections of these rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system OIG Investigative Records is exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2). This system is exempt because application of these provisions might alert investigation subjects to the existence or scope of investigations, lead to suppression, alteration, fabrication, or destruction of evidence, disclose investigative techniques or procedures, reduce the cooperativeness or safety of witnesses, or otherwise impair investigations.
(e) The TVA system TVA Police Records is exempt from subsections (c)(3), (d), (e)(1), (e)(4), (G), (H), and (I) and (f) of 5 U.S.C. 552a (section 3 of the Privacy Act) and corresponding sections of these rules pursuant to 5 U.S.C. 552a(k)(2). The TVA system Police Records is exempt from subsections (c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2). This system is exempt because application of these provisions might alert investigation subjects to the existence or scope of investigations, lead to suppression, alteration, fabrication, or destruction of evidence, disclose investigative techniques or procedures, reduce the cooperativeness or safety of witnesses, or otherwise impair investigations.
Subpart C—Government in the Sunshine Act
§ 1301.41 Purpose and scope.
(a) The provisions of this subpart are intended to implement the requirements of section 3(a) of the Government in the Sunshine Act, 5 U.S.C. 552b, consistent with the purposes and provisions of the Tennessee Valley Authority Act of 1933, 16 U.S.C. 831-831dd.
(b) Nothing in this subpart expands or limits the present rights of any person under the Freedom of Information Act (5 U.S.C. 552) and the provisions of Subpart A of this part, except that the exemptions set forth in § 1301.46 shall govern in the case of any request made pursuant to the Freedom of Information Act and Subpart A to copy or inspect the transcripts, recordings, or minutes described in § 1301.47.
(c) Nothing in this subpart authorizes TVA to withhold from any individual any record, including transcripts, recordings, or minutes required by this subpart, which is otherwise accessible to such individual under the Privacy Act (5 U.S.C. 552a) and the provisions of Subpart B.
(d) The requirements of Chapter 33 of Title 44 of the United States Code shall not apply to the transcripts, recordings, and minutes described in § 1301.47.
§ 1301.42 Definitions.
For the purposes of this subpart:
(a) The term Board means the Board of Directors of the Tennessee Valley Authority;
(b) The term meeting means the deliberations of five or more members of the TVA Board where such deliberations determine or result in the joint conduct or disposition of official TVA business, but the term does not include deliberations required or permitted by § 1301.44 or § 1301.45;
(c) The term member means an individual who is a member of the TVA Board; and
(d) The term TVA means the Tennessee Valley Authority.
§ 1301.43 Open meetings.
Members shall not jointly conduct or dispose of TVA business other than in accordance with this subpart. Except as provided in § 1301.46, every portion of every meeting of the agency shall be open to public observation, and TVA shall provide suitable facilities therefor, but participation in the deliberations at such meetings shall be limited to members and certain TVA personnel. The public may make reasonable use of electronic or other devices or cameras to record deliberations or actions at meetings so long as such use is not disruptive of the meetings.
§ 1301.44 Notice of meetings.
(a) TVA shall make a public announcement of the time, place, and subject matter of each meeting, whether it is to be open or closed to the public, and the name and telephone number of a TVA official who can respond to requests for information about the meeting.
(b) Such public announcement shall be made at least one week before the meeting unless a majority of the members determines by a recorded vote that TVA business requires that such meeting be called at an earlier date. If an earlier date is so established, TVA shall make such public announcement at the earliest practicable time.
(c) Following a public announcement required by paragraph (a) of this section, the time or place of the meeting may be changed only if TVA publicly announces the change at the earliest practicable time. The subject matter of a meeting or the determination to open or close a meeting or portion of a meeting to the public may be changed following the public announcement required by paragraph (a) of this section only if a majority of the entire membership determines by a recorded vote that TVA business so requires and that no earlier announcement of the change was possible and if TVA publicly announces such change and the vote of each member upon such change at the earliest, practicable time.
(d) Immediately following each public announcement required by this section, notice of the time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in one of the preceding, and the name and phone number of the TVA official designated to respond to requests for information about the meeting shall be submitted for publication in the
§ 1301.45 Procedure for closing meetings.
(a) Action under § 1301.46 to close a meeting shall be taken only when a majority of the members vote to take such action. A separate vote shall be taken with respect to each meeting a portion or portions of which are proposed to be closed to the public pursuant to § 1301.46 or with respect to any information which is proposed to be withheld under § 1301.46. A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than 30 days after the initial meeting in such series. The vote of each member participating in such vote shall be recorded and no proxies shall be allowed.
(b) Notwithstanding that the members may have already voted not to close a meeting, whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraphs (e), (f), or (g) of § 1301.46, the Board, upon request of any one of its members made prior to the commencement of such portion, shall vote by recorded vote whether to close such portion of the meeting.
(c) Within one day of any vote taken pursuant to this section, TVA shall make publicly available in accordance with § 1301.48 a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, TVA shall, within one day of the vote taken pursuant to this section, make publicly available in accordance with § 1301.48 a full written explanation of this action closing the portion together with a list of all persons expected to attend the meeting and their affiliation.
(d) Prior to every meeting closed pursuant to § 1301.46, there shall be a certification by the General Counsel of TVA stating whether, in his or her opinion, the meeting may be closed to the public and each relevant exemptive provision. A copy of such certification shall be retained by TVA and shall be made publicly available in accordance with § 1301.48.
§ 1301.46 Criteria for closing meetings.
Except in a case where the Board finds that the public interest requires otherwise, the second sentence of § 1301.43 shall not apply to any portion of a meeting and such portion may be closed to the public, and the requirements of §§ 1301.44 and 1301.45(a), (b), and (c) shall not apply to any information pertaining to such meeting otherwise required by this subpart to be disclosed to the public, where the Board properly determines that such portion or portions of its meeting or the disclosure of such information is likely to:
(a) Disclose matters that are (1) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (2) in fact properly classified pursuant to such Executive order;
(b) Relate solely to the internal personnel rules and practices of an agency;
(c) Disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552), provided that such statute (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(d) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(e) Involve accusing any person of a crime, or formally censuring any person;
(f) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would:
(1) Interfere with enforcement proceedings,
(2) Deprive a person of a right to a fair trial or an impartial adjudication,
(3) Constitute an unwarranted invasion of personal privacy,
(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source,
(5) Disclose investigative techniques and procedures, or
(6) Endanger the life or physical safety of law enforcement personnel;
(h) Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions;
(i) Disclose information the premature disclosure of which would:
(1) In the case of any agency which regulates currencies, securities, commodities, or financial institutions, be likely to (i) lead to significant financial speculation in currencies, securities, or commodities, or (ii) significantly endanger the stability of any financial institution; or
(2) In the case of any agency, be likely to significantly frustrate implementation of a proposed agency action, except that this provision shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final action on such proposal; or
(j) Specifically concern an agency’s issuance of a subpena, or its participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by an agency of a particular case of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing.
§ 1301.47 Transcripts of closed meetings.
(a) For every meeting closed pursuant to § 1301.46, the presiding officer of the meeting shall prepare a statement setting forth the time and place of the meeting, and the persons present, and such statement shall be retained by TVA.
(b) TVA shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public, except that in the case of a meeting, or portion of a meeting, closed to the public pursuant to paragraph (h), (i)(1), or (j) of § 1301.46, TVA shall maintain either such a transcript or recording, or a set of minutes. Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote (reflecting the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
(c) TVA shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two years after such meeting, or until one year after the conclusion of any TVA proceeding with respect to which the meeting or portion was held, whichever occurs later.
§ 1301.48 Public availability of transcripts and other documents.
(a) Public announcements of meetings pursuant to § 1301.44, written copies of votes to change the subject matter of meetings made pursuant to § 1301.44(c), written copies of votes to close meetings and explanations of such closings made pursuant to § 1301.45(c), and certifications of the General Counsel made pursuant to § 1301.45(d) shall be available for public inspection during regular business hours in the TVA Research Library, 400 W. Summit Hill Drive, Knoxville, Tennessee 37902-1401.
(b) TVA shall make promptly available to the public at the location described in paragraph (a) of this section the transcript, electronic recording, or minutes (as required by § 1301.47(b)) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as TVA determines to contain information which may be withheld under § 1301.46. Each request for such material shall be made to the Manager, Media Relations, Tennessee Valley Authority, Knoxville, Tennessee 37902-1499; state that it is a request for records pursuant to the Government in the Sunshine Act and this subpart; and reasonably describe the discussion or item of testimony, and the date of the meeting, with sufficient specificity to permit TVA to identify the item requested.
(c) In the event the person making a request under paragraph (b) of this section has reason to believe that all transcripts, electronic recordings, or minutes or portions thereof requested by that person and required to be made available under paragraph (b) of this section were not made available, the person shall make a written request to the Senior Manager, Media Relations, for such additional transcripts, electronic recordings, or minutes or portions thereof as that person believes should have been made available under paragraph (b) of this section and shall set forth in the request the reasons why such additional material is required to be made available with sufficient particularity for the Senior Manager, Media Relations, to determine the validity of such request. Promptly after a request pursuant to this paragraph is received, the Senior Manager, Media Relations, or his/her designee shall make a determination as to whether to comply with the request, and shall immediately give written notice of the determination to the person making the request. If the determination is to deny the request, the notice to the person making the request shall include a statement of the reasons for the denial, a notice of the right of the person making the request to appeal the denial to TVA’s Senior Vice President, Communications, and the time limits thereof.
(d) If the determination pursuant to paragraph (c) of this section is to deny the request, the person making the request may appeal such denial to TVA’s Senior Vice President, Communications. Such an appeal must be taken within 30 days after the person’s receipt of the determination by the Senior Manager, Media Relations, and is taken by delivering a written notice of appeal to the Senior Vice President, Communications, Tennessee Valley Authority, Knoxville, Tennessee 37902-1401. Such notice shall include a statement that it is an appeal from a denial of a request under § 1301.48(c) and the Government in the Sunshine Act and shall indicate the date on which the denial was issued and the date on which the denial was received by the person making the request. Promptly after such an appeal is received, TVA’s Senior Vice President, Communications, or the Senior Vice President’s designee shall make a final determination on the appeal. In making such a determination, TVA will consider whether or not to waive the provisions of any exemption contained in § 1301.46. TVA shall immediately give written notice of the final determination to the person making the request. If the final determination on the appeal is to deny the request, the notice to the person making the request shall include a statement of the reasons for the denial and a notice of the person’s right to judicial review of the denial.
(e) Copies of materials available for public inspection under this section shall be furnished to any person at the actual cost of duplication or transcription.
Subpart D—Testimony by TVA Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings
§ 1301.51 Purpose and scope.
(a) Purpose. This part sets forth the procedures to be followed when TVA or a TVA employee is served with a demand to provide testimony and/or produce or disclose official information or records in a legal proceeding in which TVA or the United States is not a party, and where such appearance arises out of, or is related to, the individual’s employment with TVA.
(b) Scope. This part applies when, in a judicial, administrative, legislative, or other legal proceeding, a TVA employee is served with a demand to provide testimony concerning information acquired in the course of performing official duties or because of official status and/or to produce official information and/or records.
§ 1301.52 Definitions.
The following definitions apply to this part:
(a) Appearance means testimony or production of documents or other material, including an affidavit, deposition, interrogatory, declaration, or other required written submission.
(b) Demand means a subpoena, order, or other demand of a court of competent jurisdiction, or other specific authority (e.g. an administrative or State legislative body), for the production, disclosure, or release of TVA records or information or for the appearance of TVA personnel as witnesses in their official capacities.
(c) Employee means any members of the Board of Directors, officials, officers, directors, employees or agents of TVA, except as TVA may otherwise determine in a particular case, and includes former TVA employees to the extent that the information sought was acquired in the performance of official duties for TVA.
(d) General Counsel means the General Counsel of TVA or a person to whom the General Counsel has delegated authority under this part.
(e) Legal proceeding means any and all pre-trial, trial, and post-trial stages of all judicial or administrative actions, hearings, investigations, or similar proceedings before courts, commissions, boards, or other judicial or quasi-judicial bodies or tribunals, whether criminal, civil, or administrative in nature.
(f) Records or official records and information means all information in the custody and control of TVA, relating to information in the custody and control of TVA, or acquired by a TVA employee in performance of his or her official duties or because of his or her official status while the individual was employed by TVA.
(g) Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding.
§ 1301.53 General.
(a) No employee shall appear, in response to a demand for official records or information, in any proceeding to which this part applies to provide testimony and/or produce records or other official information without prior authorization as set forth in this part.
(b) This part is intended only to provide procedures for responding to demands for testimony or production of records or other official information, and is not intended to, does not, and may not be relied upon to, create any right or benefit, substantive or procedural, enforceable by any party against TVA and the United States.
§ 1301.54 Requirements for a demand for records or testimony.
(a) Service of demands. Only TVA’s General Counsel or his/her designee is authorized to receive and accept demands sought to be served upon TVA or its employees. All such documents should be delivered in person or by United States mail to the Office of the General Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive, Knoxville, Tennessee 37902.
(b) Time limit for serving demands. The demand must be served at least 30 days prior to the scheduled date of testimony or disclosure of records, in order to ensure that the General Counsel has adequate time to consider the demand and prepare a response, except in cases of routine requests for personnel and payroll records located on-site in Knoxville, where service 15 days prior will normally be considered sufficient. The General Counsel may, upon request and for good cause shown, waive the requirement of this paragraph.
(c) Form of Demand. A demand for testimony or production of records or other official information must comply with the following requirements:
(1) The demand must be in writing and submitted to the General Counsel.
(2) The demand must include the following information:
(i) The caption of the legal proceeding, docket number, and name and address of the court or other authority involved.
(ii) If production or records or other official information is sought, a list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the records sought.
(iii) If testimony is sought, a description of the intended use of the testimony, a detailed description of how the testimony sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony sought.
(iv) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on TVA to produce the documents or testimony.
(v) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than a TVA employee, such as a retained expert.
(vi) The name, address, and telephone number of counsel to each party in the case.
(d) Additional information. TVA reserves the right to require additional information to complete the request where appropriate or to waive any of the requirements of this section at its sole discretion.
§ 1301.55 Responding to demands.
Generally, authorization to provide the requested material or testimony shall not be withheld unless their disclosure is prohibited by law or for other compelling reasons, provided the request is reasonable and in compliance with the requirements of this part, and subject to the following conditions:
(a) Demands for testimony. TVA’s practice is to provide requested testimony of TVA employees by affidavit only. TVA will provide affidavit testimony in response to demands for such testimony, provided all requirements of this part are met and there is no compelling factor under paragraph (c) of this section that requires the testimony to be withheld. The General Counsel may waive this restriction when necessary.
(b) Demands for production of records or official information. TVA’s practice is to provide requested records or official information, provided all requirements of this part are met and there is no compelling factor under paragraph (c) of this section that requires the records or official information to be withheld.
(c) Factors to be considered in determining whether requested testimony or records or official information must be withheld. The General Counsel shall consider the following factors, among others, in deciding whether requested testimony or materials must be withheld:
(1) Whether production is appropriate in light of any relevant privilege;
(2) Whether production is appropriate under the applicable rules of discovery or the procedures governing the case or matter in which the demand arose;
(3) Whether the material requested is relevant to the matter at issue;
(4) Whether allowing such testimony or production of records would be necessary to prevent a miscarriage of justice;
(5) Whether disclosure would violate a statute, Executive Order, or regulation, including, but not limited to, the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
(6) Whether disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests;
(7) Whether disclosure would improperly reveal trade secrets or proprietary confidential information without the owner’s consent;
(8) Whether disclosure would unduly interfere with the orderly conduct of TVA’s functions;
(9) Whether the records or testimony can be obtained from other sources;
(10) Whether disclosure would result in TVA appearing to favor one litigant over another;
(11) Whether the demand or request is within the authority of the party making it; and
(12) Whether a substantial Government interest is implicated.
(d) Restrictions on testimony or production of records or official information. When necessary or appropriate, the General Counsel may impose restrictions or conditions on the production of testimony or records or official information. These restrictions may include, but are not limited to:
(1) Limiting the area of testimony;
(2) Requiring that the requester and other parties to the legal proceeding agree to keep the testimony under seal;
(3) Requiring that the testimony be used or made available only in the legal proceeding for which it was requested;
(4) Requiring that the parties to the legal proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure of produced records or official information.
(e) Fees for Production. Fees will be charged for production of TVA records and information. The fees will be the same as those charged by TVA pursuant to its Freedom of Information Act regulations, 16 CFR 1301.10.
§ 1301.56 Final determination.
The General Counsel makes the final determination whether a demand for testimony or production of records or official testimony in a legal proceeding in which TVA is not a party shall be granted. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requesting party and, when necessary, the court or other authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the production of testimony or records or official information.
§ 1301.57 Waiver.
The General Counsel may grant a waiver of any procedure described by this part where a waiver is considered necessary to promote a significant interest of TVA or the United States, or for other good cause.
Subpart E—Protection of National Security Classified Information
§ 1301.61 Purpose and scope.
(a) Purpose. These regulations, taken together with the Information Security Oversight Office’s implementing directive at 32 CFR part 2001, Classified National Security Information, provide the basis for TVA’s security classification program implementing Executive Order 13526, “Classified National Security Information,” as amended (“the Executive Order”).
(b) Scope. These regulations apply to TVA employees, contractors, and individuals who serve in advisory, consultant, or non-employee affiliate capacities who have been granted access to classified information.
§ 1301.62 Definitions.
The following definitions apply to this part:
(a) “Original classification” is the initial determination that certain information requires protection against unauthorized disclosure in the interest of national security (i.e., national defense or foreign relations of the United States), together with a designation of the level of classification.
(b) “Classified national security information” or “classified information” means information that has been determined pursuant to Executive Order 13526 or any predecessor order to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form.
§ 1301.63 Senior agency official.
(a) The Executive Order requires that each agency that originates or handles classified information designate a senior agency official to direct and administer its information security program. TVA’s senior agency official is the Director, TVA Police & Emergency Management.
(b) Questions with respect to the Information Security Program, particularly those concerning the classification, declassification, downgrading, and safeguarding of classified information, shall be directed to the Senior Agency Official.
(a) Original classification authority is granted by the Director of the Information Security Oversight Office. TVA does not have original classification authority.
(b) If information is developed that appears to require classification, or is received from any foreign government information as defined in section 6.1(s) of Executive Order 13526, the individual in custody of the information shall immediately notify the Senior Agency Official and appropriately protect the information.
(c) If the Senior Agency Official believes the information warrants classification, it shall be sent to the appropriate agency with original classification authority over the subject matter, or to the Information Security Oversight Office, for review and a classification determination.
(d) If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classified pending a determination by an original classification authority. If there is reasonable doubt about the appropriate level of classification, it shall be safeguarded at the higher level of classification pending a determination by an original classification authority.
§ 1301.65 Derivative classification.
(a) In accordance with Part 2 of Executive Order 13526 and directives of the Information Security Oversight Office, the incorporation, paraphrasing, restating or generation in new form of information that is already classified, and the marking of newly developed material consistent with the classification markings that apply to the source information, is derivative classification.
(1) Derivative classification includes the classification of information based on classification guidance.
(2) The duplication or reproduction of existing classified information is not derivative classification.
(b) Authorized individuals applying derivative classification markings shall:
(1) Observe and respect original classification decisions; and
(2) Carry forward to any newly created documents the pertinent classification markings.
(3) For information derivatively classified based on multiple sources, the authorized individuals shall carry forward:
(i) The date or event for declassification that corresponds to the longest period of classification among the sources; and
(ii) A listing of these sources on or attached to the official file or record copy.
(c) Documents classified derivatively shall bear all markings prescribed by 32 CFR 2001.20 through 2001.23 and shall otherwise conform to the requirements of 32 CFR 2001.20 through 2001.23.
§ 1301.66 General declassification and downgrading policy.
(a) TVA does not have original classification authority.
(b) TVA personnel may not declassify information originally classified by other agencies.
§ 1301.67 Mandatory review for declassification.
(a) Reviews and referrals in response to requests for mandatory declassification shall be conducted in compliance with section 3.5 of Executive Order 13526, 32 CFR 2001.33, and 32 CFR 2001.34.
(b) Any individual may request a review of classified information and material in possession of TVA for declassification. All information classified under Executive Order 13526 or a predecessor Order shall be subject to a review for declassification by TVA, if:
(1) The request describes the documents or material containing the information with sufficient specificity to enable TVA to locate it with a reasonable amount of effort. Requests with insufficient description of the material will be returned to the requester for further information.
(2) The information requested is not the subject of pending litigation.
(c) Requests shall be in writing, and shall be sent to: Director, TVA Police & Emergency Management, Tennessee Valley Authority, 400 West Summit Hill Drive, Knoxville, TN 37902.
§ 1301.68 Identification and marking.
(a) Classified information shall be marked pursuant to the standards set forth in section 1.6, Identification and Marking, of the Executive Order; Information Security Oversight Office implementing directives in 32 CFR part 2001, subpart B; and internal TVA procedures.
(b) Foreign government information shall retain its original classification markings or be marked and classified at a U.S. classification level that provides a degree of protection at least equivalent to that required by the entity that furnished the information. Foreign government information retaining its original classification markings need not be assigned a U.S. classification marking provided the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings.
(c) Information assigned a level of classification under predecessor executive orders shall be considered as classified at that level of classification.
§ 1301.69 Safeguarding classified information.
(a) All classified information shall be afforded a level of protection against unauthorized disclosure commensurate with its level of classification.
(b) The Executive Order and the Information Security Oversight Office implementing directive provides information on the protection of classified information. Specific controls on the use, processing, storage, reproduction, and transmittal of classified information within TVA to provide protection for such information and to prevent access by unauthorized persons are contained in internal TVA procedures.
(c) Any person who discovers or believes that a classified document is lost or compromised shall immediately report the circumstances to their supervisor and the Senior Agency Official, who shall conduct an immediate inquiry into the matter.
PART 1302—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF TVA—EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
§ 1302.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act 1964 (hereafter referred to as the “Act”) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving financial assistance from TVA.
§ 1302.2 Application of this part.
This part applies to any program for which financial assistance is provided by TVA. The types of Federal financial assistance to which this part applies are listed in appendix A of this part. Financial assistance, as used in this part, includes the grant or loan of money; the donation of real or personal property; the sale, lease, or license of real or personal property for a consideration which is nominal or reduced for the purpose of assisting the recipient; the waiver of charges which would normally be made, in order to assist the recipient; the entry into a contract where a purpose is to give financial assistance to the contracting party; and similar transactions. This part does not apply to:
(a) Any financial assistance by way of insurance or guaranty contracts,
(b) Money paid, property transferred, or other assistance extended before the effective date of this part,
(c) Any assistance to any individual who is the ultimate beneficiary, or
(d) Any employment practice, under any such program, of any employer, employment agency, or labor organization, unless such practice exists in a program where a primary objective of the TVA financial assistance is to provide employment; or where such practice subjects persons to discrimination in the provision of services and benefits on the grounds of race, color, or national origin in a program or activity receiving Federal financial assistance from TVA.
§ 1302.3 Definitions.
(a) TVA as used in these regulations, refers to the Tennessee Valley Authority, as created by the Tennessee Valley Authority Act of 1933, 48 Stat. 58, as amended, 16 U.S.C. 831-831dd. See also paragraph (e) of § 1302.6.
(b) Recipient refers to any person, group, or other entity which either receives financial assistance from TVA, or which has been denied such assistance.
(c) Assistant Attorney General refers to the Assistant Attorney General, Civil Rights Division, Department of Justice.
(d) Title VI refers to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq.
(e) Program or activity and program refer to all of the operations of any entity described in paragraphs (e)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (e)(1), (2), or (3) of this section.
§ 1302.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from TVA. For the purposes of this part, the following definitions of race and ethnic group apply:
(1) Black, not of Hispanic origin. A person having origins in any of the black racial groups of Africa;
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race;
(3) Asian or Pacific Islander. A person having origin in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippine Islands, and Samoa;
(4) American Indian or Alaskan Native. A person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal affiliation or community recognition;
(5) White, not of Hispanic origin. A person having origins in any of the original peoples of Europe, North Africa, or the Middle East.
(b) Specific discriminatory actions prohibited. (1) A recipient receiving Federal financial assistance from TVA may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in any manner related to that individual’s receipt of any service, financial aid, or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining whether any admission, enrollment, quota, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program has been satisfied.
(vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford that individual an opportunity to do so which is different from that afforded others under the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.
(4) As used in this section the services, financial aid, or other benefits provided under a program receiving financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of the financial assistance.
(5) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.
(6) This regulation does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color, or national origin. Where previous discriminatory practice or usage tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this regulation applies, the recipient has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purposes of the Act.
§ 1302.5 Assurances required.
(a) TVA contributes financial assistance only under agreements which contain a provision which specifically requires compliance with this part in programs or activities receiving Federal financial assistance from TVA. If the financial assistance involves the furnishing of real property, the agreement shall obligate the recipient, or in the case of a subsequent transfer, the transferee, for the period during which the real property is used for a purpose for which the financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where the financial assistance involves the furnishing of personal property, the agreement shall obligate the recipient for the period during which the recipient retains ownership or possession of the property. In all other cases the agreement shall obligate the recipient for the period during which financial assistance is extended pursuant to the agreement. TVA shall specify the form of the foregoing agreements, and the extent to which an agreement shall be applicable to subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants.
(b) In the case of real property, structures or improvements thereon, or interests therein, which is acquired with Federal financial assistance, or in the case where Federal financial assistance is provided in the form of a transfer by TVA of real property or interest therein, the instrument effecting or recording the transfer of title shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property is involved, but property is improved with Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where the property is obtained by transfer from TVA, the covenant against discrimination may also include a condition coupled with a right to be reserved by TVA to revert title to the property in the event of a breach of the covenant where, in the discretion of TVA, such a condition and right of reverter is appropriate to the statute under which the real property is obtained and to the nature of the grant and the grantee. In such event if a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, TVA may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as it deems appropriate, to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.
§ 1302.6 Compliance information.
(a) Cooperation and assistance. TVA shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and submit to TVA timely, complete and accurate compliance reports at such times, and in such form and containing such information, as TVA may determined to be necessary to enable it to ascertain whether the recipient has complied or is complying with this part. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.
(c) Access to sources of information. Each recipient shall permit access by TVA during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the program for which the recipient receives financial assistance, and make such information available to them in such manner as TVA finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
§ 1302.7 Compliance reviews and conduct of investigations.
(a) Preaward compliance reviews. (1) Prior to approval of financial assistance, TVA will make a determination as to whether the proposed recipient is in compliance with Title VI and the requirements of this part with respect to a program or activity for which it is seeking Federal financial assistance from TVA. The basis for such a determination shall be submission of an assurance of compliance and a review of the data and information submitted by the proposed recipient, any relevant compliance review reports on file with TVA, and any other information available to TVA. Where a determination cannot be made from this data, TVA will require the submission of necessary additional information and may take additional steps. Such additional steps may include, for example, communicating with local government officials, protected class organizations, and onsite reviews.
(2) No proposed recipient shall be approved unless it is determined that the proposed recipient is in compliance with Title VI and this part or has agreed in writing to take necessary specified steps within a stated period of time to come into compliance with Title VI and this part. Such an agreement must be approved by TVA and made a part of the conditions of the agreement under which the financial assistance is provided.
(3)(i) Where TVA finds that a proposed recipient may not be in compliance with Title VI and this part, TVA shall notify the proposed recipient and the Assistant Attorney General for Civil Rights in writing of:
(A) The preliminary findings setting forth the alleged noncompliance;
(B) Suggested actions for correcting the alleged noncompliance; and
(C) The fact that the proposed recipient has 10 days to correct the alleged noncompliance or to provide during this time a written submission responding to or rebutting the preliminary findings or suggested corrective actions set forth in the notice.
(ii) If within this 10-day period the proposed recipient has not agreed to the suggested actions set forth or to other actions that would correct the alleged noncompliance under paragraph (a)(3)(i)(B) of this section, or the preliminary findings set forth in paragraph (a)(3)(i)(A) of this section have not been rebutted to TVA’s satisfaction, or voluntary compliance has not been otherwise secured, TVA shall make a formal determination of compliance or noncompliance, notify the proposed recipient, and the Assistant Attorney General for Civil Rights and institute proceedings (including provision of an opportunity for a hearing) under § 1302.8 of this part.
(b) Postaward compliance reviews. (1) TVA may periodically conduct compliance reviews of selected recipients in their programs or activities receiving TVA financial assistance, including the request of data and information, and may conduct onsite reviews where it has reason to believe that discrimination may be occurring in such programs or activities.
(2) Selection for review shall be made on the basis of the following criteria among others:
(i) The number and nature of discrimination complaints filed against a recipient with TVA or other Federal agencies;
(ii) The scope of the problem revealed by an investigation commenced on the basis of a complaint filed with TVA against a recipient; and
(iii) The amount of assistance provided to the recipient.
(3) Within 15 days after selection of a recipient for review, TVA shall inform the recipient that it has been selected for review. The review will ordinarily be initiated by a letter requesting data pertinent to the review and advising the recipient of:
(i) The practices to be reviewed;
(ii) The programs or activities affected by the review;
(iii) The opportunity to make, at any time prior to receipt of the final TVA findings with respect to the review pursuant to paragraph (b)(6) of this section, a documentary submission responding to TVA which explains, validates, or otherwise addresses the practices under review; and
(iv) The schedule under which the review will be conducted and a determination of compliance or noncompliance made.
(4) Within 180 days of initiation of a review, TVA shall advise the recipient, in writing of:
(i) Its preliminary findings;
(ii) Where appropriate, recommendations for achieving voluntary compliance;
(iii) The opportunity to request TVA to engage in voluntary compliance negotiations prior to TVA’s final determination of compliance or noncompliance. TVA shall notify the Assistant Attorney General at the time it notifies the recipient of any matter where recommendations for achieving voluntary compliance are made.
(5) TVA’s General Manager may extend the 180-day period set out in paragraph (b)(4) of this section for good cause shown.
(6) If, within 50 days of the recipient’s notification under paragraph (b)(4) of this section, TVA’s recommendations for compliance are not met or voluntary compliance is not secured, and the preliminary findings have not been rebutted to TVA’s satisfaction, TVA shall make a final determination of compliance or noncompliance. The determination is to be made no later than 14 days after the conclusion of the 50-day negotiation period. TVA’s General Manager may extend the 14-day period for good cause shown.
(7) Where TVA makes a formal determination of noncompliance on a postaward review, the recipient and the Assistant Attorney General shall be immediately notified in writing of the determination and of the fact that the recipient has an additional 10 days in which to come into voluntary compliance. If voluntary compliance has not been achieved within the 10 days, TVA shall institute proceedings under § 1302.8 of this part.
(8) All agreements to come into voluntary compliance shall be in writing and signed by TVA and an official who has authority to legally bind the recipient.
(c) Complaint investigation. (1) TVA shall investigate complaints of discrimination in a program or activity receiving Federal financial assistance from TVA that allege a violation of Title VI or this part.
(2) No complaint will be investigated if it is received by TVA more than 180 days after the date of the alleged discrimination unless the time for filing is extended by TVA for good cause shown. Where a complaint is accepted for investigation, TVA will initiate an investigation. The complainant shall be notified in writing as to whether the complaint has been accepted or rejected.
(3) TVA shall conduct investigations of complaints as follows:
(i) Within 10 days of receipt of a complaint, the Director of Equal Opportunity Compliance shall:
(A) Determine whether TVA has jurisdiction under paragraphs (c) (1) and (2) of this section;
(B) If jurisdiction is not found, wherever possible refer the complaint to the Federal agency with such jurisdiction and advise the complainant;
(C) If jurisdiction is found, notify the recipient alleged to be in violation of the receipt and acceptance of the complaint; and
(D) Initiate the investigation.
(ii) The investigation will ordinarily be initiated by a letter to the recipient requesting data pertinent to the complaint and informing the recipient of:
(A) The nature of the complaint, and with the written consent of the complainant, the identity of the complainant;
(B) The programs or activities affected by the complaint;
(C) The opportunity to make, at any time prior to receipt of TVA’s final findings under paragraph (c)(5) of this section, a documentary submission, responding to, rebutting, or denying the allegations made in the complaint; and
(D) The schedule under which the complaint will be investigated and a determination of compliance or noncompliance made.
(iii) Within 180 days of the initiation of a complaint investigation, TVA shall advise the recipient, in writing, of:
(A) Preliminary findings;
(B) Where appropriate, recommendations for achieving voluntary compliance; and
(C) The opportunity to request TVA to engage in voluntary compliance negotiations prior to TVA’s final determination of compliance or noncompliance. TVA shall notify the Assistant Attorney General at the time the recipient is notified of any matter where recommendations for achieving voluntary compliance are made.
(4) If, within 50 days of the recipient’s notification under paragraph (c) of this section, TVA’s recommendations for compliance are not met, or voluntary compliance is not secured, and the preliminary findings have not been rebutted to TVA’s satisfaction, TVA shall make a formal determination of compliance or noncompliance. The determination is to be made no later than 14 days after conclusion of a 50-day negotiation period. TVA’s General Manager may extend the 14-day period for good cause shown.
(5) Where TVA makes a formal determination of noncompliance, the complainant, the recipient, and the Assistant Attorney General shall be immediately notified in writing of the determination and of the fact that the recipient has an additional 10 days in which to come into compliance. If voluntary compliance has not been achieved within the 10 days, TVA shall institute proceedings under § 1302.8 of this part. The complainant shall also be notified of any action taken including the closing of the complaint or the achievement of voluntary compliance. All agreements to come into voluntary compliance shall be in writing and signed by TVA and an official who has authority to legally bind the recipient and shall be made available to the complainant on request.
(6) If the complainant or party other than TVA has filed suit in Federal or State court alleging the same discrimination as alleged in a complaint pending before TVA, and if during TVA’s investigation the trial of that suit would be in progress, TVA will consult with the Assistant Attorney General and court records to determine the need to continue or suspend the investigation and will monitor the litigation through the court docket and contacts with the complainant. Upon receipt of notice that the court has made a finding of discrimination against a recipient that would constitute a violation of this part, TVA shall institute proceedings as specified in § 1302.8 of this part. All agreements to come into voluntary compliance shall be in writing and signed by TVA and an official who has authority to legally bind the recipient.
(7) The time limits listed in paragraphs (c) (3) through (5) of this section shall be appropriately adjusted where TVA requests another Federal agency to act on the complaint. TVA shall monitor the progress of the matter through liaison with the other agency. Where the request to act does not result in timely resolution of the matter, TVA shall institute appropriate proceedings as required by this part.
(d) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of Title VI or this part, or because such individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this regulation, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
(e) Enforcement authority. TVA’s Director of Equal Opportunity Compliance, or a successor as designated by TVA’s Board of Directors, will be responsible for all decisions about initiating compliance reviews and complaint investigations. TVA’s General Manager, or a successor as designated by TVA’s Board of Directors, shall be responsible for all decisions about initiating compliance actions under § 1302.8(a) of this part.
§ 1302.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this regulation may be effected by the suspension or termination of or refusal to grant or to continue financial assistance or by any other means authorized by law. Such other means may include, but are not limited to,
(1) A reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act),
(2) Institution of appropriate proceedings by TVA to enforce the provisions of the agreement of financial assistance or of any deed or instrument relating thereto, and
(3) Any applicable proceeding under State or local law.
(b) Noncompliance with § 1302.5. If anyone requesting financial assistance declines to furnish the assurance required under § 1302.5 of this part, or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section, financial assistance may be refused in accordance with the procedures of paragraph (c) of this section and for such purposes, the term “recipient” shall be deemed to include one which has been denied financial assistance. TVA shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that TVA shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an agreement therefor entered into with TVA prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue financial assistance. No order suspending, terminating or refusing to grant or continue financial assistance shall become effective until (1) TVA has advised the recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, or a failure by the recipient to comply with a requirement imposed by or pursuant to this part, (3) the action has been approved by the TVA Board pursuant to § 1302.9, and (4) the expiration of 30 days after the TVA Board has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue financial assistance shall be limited to the particular political entity, or part thereof, or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until (1) TVA has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.
§ 1302.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 1302.7(b), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected recipient. This notice shall advise the recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the recipient may request of TVA that the matter be scheduled for hearing or (2) advise the recipient that the matter in question has been set down for hearing at a stated time and place. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. A recipient may waive a hearing and submit written information and argument for the record. The failure of a recipient to request a hearing under this subsection or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 1302.7(b) and consent to the making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the time and place fixed by TVA unless it determines that the convenience of the recipient requires that another place be selected. Hearings shall be held before the TVA Board, or a member thereof, or, at the discretion of the Board, before a hearing examiner designated in accordance with section 11 of the Administrative Procedure Act.
(c) Right to counsel. In all proceedings under this section, the recipient and TVA shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act) and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both TVA and the recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(e) Consolidated or Joint Hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under Title VI of the Act, the TVA Board may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedure not inconsistent with this part. Final decisions in such cases, insofar as this part is concerned, shall be made in accordance with § 1302.9.
§ 1302.10 Decisions and notices.
(a) Decision by a member of the TVA Board or a hearing examiner. A member of the TVA Board or a hearing examiner who holds the hearing shall either make an initial decision or certify the entire record, including the Board member’s or examiner’s recommended findings and proposed decision, to the TVA Board for a final decision. A copy of such initial decision or certification shall be mailed to the recipient. Where the initial decision is made by a member of the TVA Board or a hearing examiner, the recipient may file exceptions to the initial decision, together with a statement of reasons therefor. Such exceptions and statement shall be filed with the TVA Board within 30 days of the date the notice of initial decision was mailed to the recipient. In the absence of exceptions, the TVA Board may on its own motion within 45 days after the initial decision serve on the recipient a notice that the TVA Board will review the decision. Upon the filing of such exceptions or of such notice of review, the TVA Board shall review the initial decision and issue its own decision thereon including the reasons therefor. In the absence of either exceptions or a notice of review, the initial decision shall constitute the final decision of the TVA Board.
(b) Decisions on record or review by the TVA Board. Whenever a record is certified to the TVA Board for decision or it reviews the decision of a member of the TVA Board or a hearing examiner pursuant to paragraph (a) of this section, or whenever the TVA Board conducts the hearing, the recipient shall be given reasonable opportunity to file with the Board briefs or other written statements of its contentions, and a copy of the final decision of the Board shall be given in writing to the recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 1302.8(a) a decision shall be made by the TVA Board on the record and a copy of such decision shall be given to the recipient, and to the complainant, if any.
(d) Rulings required. Each decision shall set forth a ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the recipient has failed to comply.
(e) Approval by TVA Board. Any final decision (other than a decision by the TVA Board) which provides for the suspension or termination of, or the refusal to grant or continue financial assistance, or the imposition of any other sanction available under this regulation or the Act, shall promptly be transmitted to the TVA Board, which may approve such decision, may vacate it, or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no financial assistance to which this regulation applies will thereafter be extended to the recipient determined by such decision to have failed to comply with this part, unless and until it corrects its noncompliance and satisfies TVA that it will fully comply with this part.
(g) Posttermination proceedings. (1) A recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this regulation and provides reasonable assurance that it will fully comply with this regulation.
(2) Any recipient or proposed recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request TVA to restore fully the recipient’s eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the recipient has met the requirements of paragraph (g)(1) of this section. If TVA determines that those requirements have been satisfied, TVA shall restore such eligibility.
(3) If TVA denies any such request, the recipient may submit a written request for a hearing specifying why it believes TVA to have been in error. The recipient shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by TVA. The recipient will be restored to such eligibility if the recipient proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
§ 1302.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.