Delaware River Basin Commission – Federal Register Recent Federal Regulation Documents

The Delaware River Basin Commission (DRBC or ``Commission'') will hold a public hearing to receive comments on proposed amendments to the Commission's Water Quality Regulations, Water Code and Comprehensive Plan to revise the human health water quality criteria for polychlorinated biphenyls (PCBs) in the Delaware Estuary (DRBC Water Quality Management Zones 2 through 5), extend application of the DRBC's PCB human health water quality criterion to Delaware Bay (DRBC Water Quality Zone 6) and provide for the use of compliance schedules where implementation of a stream quality objective established by the Commission requires a reduction of the pollutant concentration or loading of a discharge to Basin waters.

Notice is hereby given that the methodology proposed to be used in the 2010 Delaware River and Bay Integrated List Water Quality Assessment is available for review and comment. The proposed methodology is a substantially modified version of the methodology used for the 2008 assessment.

The DRBC will hold a public hearing during its regularly scheduled business meeting to hear comment on a proposal to amend the Commission's fees for the review of projects in accordance with Section 3.8 and Article 10 of the Delaware River Basin Compact. Existing project review fees are proposed to be increased, effective July 1, 2009, for the first time since June of 2003. The increases are needed in order to partly close a significant gap between annual project review fee revenue and the cost of the Commission's project review function.

By Resolution No. 2008-9 on July 16, 2008, the Delaware River Basin Commission (``Commission'' or DRBC) approved amendments to its Water Quality Regulations, Water Code and Comprehensive Plan to establish numeric values for existing water quality for the reach of the main stem Delaware River known as the ``Lower Delaware'' and to assign the Special Protection Waters (SPW) classification ``Significant Resource Waters'' (SRW) on a permanent basis to this reach. The Commission also approved language to clarify aspects of the SPW regulations, especially with respect to existing facilities, that have confused some DRBC docket holders and applicants since the SPW program was originally adopted by the Commission in 1992 for point sources and in 1994 for non-point sources.

The Delaware River Basin Commission (``Commission'' or ``DRBC'') will hold a public hearing to receive comments on proposed amendments to the Commission's Water Code and Comprehensive Plan to phase in a requirement for water purveyors to follow a revised water audit approach to identify and control water loss.

Notice is hereby given that the methodology, including data sets, to be used in developing the 2008 Delaware River and Bay Integrated List Water Quality Assessment is available for review and comment.

The Delaware River Basin Commission (``Commission'' or DRBC) will hold a public hearing to receive comments on a proposed amendment to the Commission's Water Quality Regulations, Water Code, and Comprehensive Plan to extend through May 15, 2008 the temporary classification of the Lower Delaware River as Significant Resource Waters (SRW). Permanent classification is anticipated following an additional notice and comment rulemaking that is expected to begin shortly. Extending the temporary classification will help to protect the exceptional scenic, recreational and water quality values of the Lower Delaware from degradation pending completion of that process.

The Commission will hold a public hearing and accept written comment on a proposal to amend the agency's Comprehensive Plan and Water Code to establish a Flexible Flow Management Program (FFMP) for the New York City Delaware Basin Reservoirs (``City Delaware Reservoirs'') for multiple objectives, including, among others, water supply and drought mitigation; management of the reservoir tailwater fisheries and other habitat needs, and spill mitigation. The current reservoir releases program, which was established by Resolution No. 2004-3 in April of 2004, will expire on May 31, 2007. The current spill mitigation program, established by Resolution No. 2006-18, also will expire on May 31, 2007. The Commission will also accept comment on alternative reservoir management strategies that may be adopted in the event that consensus on the proposed FFMP is not reached. The alternative reservoir releases options to be considered are: extending the current reservoir releases program or reinstating a previous reservoir releases program plan. Either option would be considered in combination with a seasonal spill mitigation program or an annual spill mitigation program for the three reservoirs. The releases program adopted in the event consensus is not reached on the FFMP would continue in effect until any expiration date contained in the program adopted or unless and until replaced by another program that has been approved by the Commission following a notice and comment rulemaking process. In accordance with Section 3.3 of the Delaware River Basin Compact, any program affecting the diversions, compensating releases, rights, conditions, and obligations of the 1954 Supreme Court Decree in the matter of New Jersey v. New York, 347 U.S. 995, 74 S. Ct. 842 also requires the unanimous consent of the decree parties, which include the states of Delaware, New Jersey and New York, the Commonwealth of Pennsylvania, and the City of New York.

The Delaware River Basin Commission (``Commission'' or ``DRBC'') will hold a public hearing to receive comments on proposed amendments to the Commission's Basin RegulationsWater Supply Charges and Comprehensive Plan concerning certificates of entitlement. No changes in the substance or administration of the rule are proposed. The purpose of the proposed amendments is to clarify the language of the rule to conform to the Commission's past decisions and current practices in order to provide better notice to users as to how the Commission is implementing its entitlements program and to avoid future controversy. Background. The Delaware River Basin Compact (``Compact''), the 1961 statute that created the DRBC and defined its powers, authorizes the Commission to charge for the use of facilities that it may own or operate and for products and services rendered thereby. Compact, Sec. 3.7. Congress limited this authority by providing that the Commission cannot charge for water withdrawals or diversions that could lawfully have been made without charge as of the effective date of the Compact. Id., Sec. 15.1(b). By Resolution No. 64-16A in 1964 the Commission authorized a water charging program. It provided for the revenues generated by the program to be used for repayment of the nonfederal share of the investment cost of water supply storage facilities associated with federal projects within the Basin. In anticipation of Commission investment in storage at the Beltzville Lake and Blue Marsh Reservoir projects in Pennsylvania, the Commission by Resolution No. 1971-4 defined, among other things, the means by which it would establish water charging rates. Consistent with Section 15.1(b) of the Compact, Resolution No. 1971-4 provided that charges would be applicable only to the amount of water withdrawn in excess of the amount taken or legally entitled to be taken by an entity during the preceding year. By Resolution No. 74-6, the Commission instituted a system of water supply charges for surface water withdrawals within the Basin. That resolution provided for the issuance of certificates of entitlement to then-current water users, establishing the amount of water each could lawfully take from the surface waters of the Basin without charge, consistent with Section 15.1(b) of the Compact. The resolution provided that a certificate of entitlement was not transferable, except under limited circumstances set forth in enumerated exceptions. Because entitlements treat users that commenced water withdrawals before the enactment of the Compact more favorably than users who commenced water withdrawals later, even though all users benefit equally from the facilities financed by water supply charges, courts and the Commission have emphasized the need to eliminate entitlements over time. Both the Commission and the courts have construed narrowly the exceptions to the rule that entitlements are not transferable, and the Commission has in its decisions consistently held that changes in ownership or control would extinguish a certificate. However, the language of the regulations has never explicitly defined ``changes in ownership or control.'' As a consequence, in the decisions that the Commission has been asked to make in its adjudicatory capacity and that the courts have subsequently been asked to decide, the matter of what constitutes a change of ownership or control has been controversial. In 1994, in response to a ruling by the Third Circuit in Texaco Refining and Marketing, Inc. v. DRBC, 824 F. Supp. 500 (D.Del. 1993), aff'd., No. 93-7475 (3d Cir. June 24, 1994) (per curiam), the Commission adopted Resolution No. 94-20. That resolution incorporated an explicit ``ownership and/or control'' test and eliminated the merger exception included in the Commission's regulations at the time. In addition, the exception for corporate reorganizations embodied in Section 5.2.1.F.2 of the Water Charging Regulations was amended to apply only when the reorganization ``does not affect ownership and/or control.'' In spite of the 1994 amendment, some members of the Basin community have continued to interpret the language of the rule in a manner contrary to the Commission's consistent interpretation. To avoid further controversy, the Commission proposes a more thorough revision of the language, intended to remove any ambiguity. Key Provisions. In addition to defining ``change in ownership and/ or control'' with much greater specificity, the proposed revisions also make clear that a merger at any tier in a corporate organization will extinguish a certificate held by a subsidiary in the same way as if the merger had occurred at the subsidiary level. Although the Commission has interpreted its rule this way in the past, the rules have never been explicit on this point. The proposed amendments preserve and clarify the corporate reorganization exception contained in the current regulation. The Commission traditionally has not extinguished an entitlement in the case of an internal reorganization, and it does not propose a change in this practice. The proposed amendments also preserve the existing exception for agricultural uses. Historically, agriculture has been treated differently than other uses. For purposes other than agriculture, an entitlement is issued to a user and would not be transferable to a different user, even if the use remained the same. In the case of agriculture, however, an entitlement effectively runs with the land, as long as the land remains in agriculture. The proposed amendments provide that an entitlement can be reissued to the successor of a holder of a certificate issued for agricultural water use, provided that the successor demonstrates that the water will continue to be used for agricultural irrigation purposes.

The Delaware River Basin Commission will hold a public hearing to receive comments on a proposed amendment to the Commission's Water Quality Regulations, Water Code, and Comprehensive Plan to extend the temporary classification of the Lower Delaware River as Significant Resource Waters. The temporary classification was enacted by Commission Resolution No. 2005-2 on January 19, 2005 following notice and comment rulemaking. Its effect was to make the Lower Delaware subject to all applicable provisions of the Commission's Special Protection Waters regulations, except those that depend for implementation upon the use of numeric values for existing water quality. Absent further amendment to extend the classification, it will expire on September 30, 2005. The Commission today proposes to extend that date by up to twelve months. The classification would thus expire on September 30, 2006 unless the Commission should either permanently classify the Lower Delaware River or once again extend the temporary classification by rule amendment prior to that date. The proposed extension is needed because before deciding whether or not to classify certain sections of the Lower Delaware River as Outstanding Basin Waters as originally proposed, and whether to make the temporary Special Protection Waters designation permanent for some or all of the Lower Delaware River, the Commission wishes to fully evaluate implementation options and establish numeric values for existing water quality based upon analysis of a five-year (2000-2004) data set, for which the final year of data only became available late in 2004. Extension of the temporary designation will protect the exceptional value of the Lower Delaware from degradation during the period required to complete this evaluation and conduct a notice and comment rulemaking process on the numeric values and permanent classification.