[Title 18 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
18
Part 400 to End
Revised as of April 1, 2001
Conservation of Power and Water Resources
Containing a codification of documents
of general applicability and future effect
As of April 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
For sale by the Superintendent of Documents, U.S. Government Printing
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Table of Contents
Page
Explanation................................................. v
Title 18:
Chapter III--Delaware River Basin Commission 3
Chapter VI--Water Resources Council 49
Chapter VIII--Susquehanna River Basin Commission 101
Chapter XIII--Tennessee Valley Authority 129
Finding Aids:
Table of CFR Titles and Chapters........................ 269
Alphabetical List of Agencies Appearing in the CFR...... 287
List of CFR Sections Affected........................... 297
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 18 CFR 401.0 refers
to title 18, part 401,
section 0.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2001.
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THIS TITLE
Title 18--Conservation of Power and Water Resources is composed of
two volumes. The first volume containing parts 1 to 399, includes all
current regulations of the Federal Energy Regulatory Commission,
Department of Energy. The second volume, containing part 400 to end,
includes all current regulations issued by the Delaware River Basin
Commission, the Water Resources Council, the Susquehanna River Basin
Commission, and the Tennessee Valley Authority as of April 1, 2001.
The OMB control numbers for the Federal Energy Regulatory
Commission, Department of Energy, appear in Sec. 389.101 of chapter I.
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TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
(This book contains part 400 to End)
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Part
chapter iii--Delaware River Basin Commission................ 401
chapter vi--Water Resources Council......................... 701
chapter viii--Susquehanna River Basin Commission............ 801
chapter xiii--Tennessee Valley Authority.................... 1300
Cross References: Applications and entries conflicting with lands
reserved or classified as power sites, or covered by power
applications: See Public Lands, Interior, 43 CFR part 2300, subpart
2320.
Interstate Commerce Commission: See Transportation, 49 CFR chapter X.
Irrigation projects; electrification, Bureau of Indian Affairs,
Department of the Interior: See Indians, 25 CFR parts 175--177.
Regulations of the Bureau of Land Management relating to rights-of-way
for power, telephone, and telegraph purposes: See Public Lands,
Interior, 43 CFR part 2800.
Rights-of-way over Indian lands: See Indians, 25 CFR parts 169, 170,
and 265.
Securities and Exchange Commission: See Commodity and Securities
Exchanges, 17 CFR chapter II.
Withdrawal of public lands: See Public Lands, Interior, 43 CFR part
2300.
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CHAPTER III--DELAWARE RIVER BASIN
COMMISSION
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SUBCHAPTER A--ADMINISTRATIVE MANUAL
Part Page
401 Rules of practice and procedure............. 5
410 Basin regulations; water code and
administrative manual--Part III water
quality regulations..................... 26
415 Basin regulations--flood plain regulations.. 27
420 Basin regulations--water supply charges..... 33
SUBCHAPTER B--SPECIAL REGULATIONS
430 Ground water protection area: Pennsylvania.. 38
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SUBCHAPTER A--ADMINISTRATIVE MANUAL
PART 401--RULES OF PRACTICE AND PROCEDURE--Table of Contents
Sec.
401.0 Introduction.
Subpart A--Comprehensive Plan
401.1 Scope.
401.2 Concept of the plan.
401.3 Other agencies.
401.4 Project applications and proposed revisions and changes.
401.5 Review of applications.
401.6 Proposed revisions and changes.
401.7 Further action.
401.8 Public projects under Article 11 of the Compact.
401.9 Custody and availability.
Subpart B--Water Resources Program
401.21 Scope.
401.22 Concept of the Program.
401.23 Procedure.
401.24 Preparation and adoption.
401.25 Alternatives for public projects.
401.26 Inventory of other projects.
Subpart C--Project Review Under Section 3.8 of the Compact
401.31 Scope.
401.32 Concept of 3.8.
401.33 Administrative agreements.
401.34 Submission of project required.
401.35 Classification of projects for review under Section 3.8 of the
Compact.
401.36 Water supply projects--Conservation requirements.
401.37 Sequence of approval.
401.38 Form of referral by State or Federal agency.
401.39 Form of submission of projects not requiring prior approval by
State or Federal agencies.
401.40 Informal conferences and emergencies.
401.41 Limitation of approval.
Subpart D [Reserved]
Subpart E--Appeals or Objections to Decisions of the Executive Director
in Water Quality Cases
401.71 Scope.
401.72 Notice and request for hearing.
401.73 Form of request.
401.74 Form and contents of report.
401.75 Protection of trade secrets; Confidential information.
401.76 Failure to furnish report.
401.77 Informal conference.
401.78 Consolidation of hearings.
Subpart F--Administrative and Other Hearings
401.81 Hearings generally.
401.82 Authorization to conduct hearings.
401.83 Hearing Officer.
401.84 Hearing procedure.
401.85 Staff and other expert testimony.
401.86 Record of proceedings.
401.87 Assessment of costs; Appeals.
401.88 Findings, report and Commission review.
401.89 Action by the Commission.
401.90 Appeals from final Commission action; Time for appeals.
Subpart G--Penalties and Settlements in Lieu of Penalties
401.91 Scope of subpart.
401.92 Notice to possible violators.
401.93 The record for decision-making.
401.94 Adjudicatory hearings.
401.95 Assessment of a penalty.
401.96 Factors to be applied in fixing penalty amount.
401.97 Enforcement of penalties.
401.98 Settlement by agreement in lieu of penalty.
401.99 Suspension or modification of penalty.
Subpart H--Public Access to Records and Information
401.101 Policy on disclosure of Commission records.
401.102 Partial disclosure of records.
401.103 Request for existing records.
401.104 Preparation of new records.
401.105 Indexes of certain records.
401.106 FOIA Officer.
401.107 Permanent file of requests for Commission records.
401.108 Filing a request for records.
401.109 Time limitations.
401.110 Fees.
401.111 Waiver of fees.
401.112 Exempt information.
401.113 Segregable materials.
401.114 Data and information previously disclosed to the public.
401.115 Discretionary disclosure by the Executive Director.
401.116 Disclosure to consultants, advisory committees, State and local
government officials, and other special government employees.
401.117 Disclosure to other Federal government departments and
agencies.
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401.118 Disclosure in administrative or court proceedings.
401.119 Disclosure to Congress.
Subpart I--General Provisions
401.121 Definitions.
401.122 Supplementary details.
401.123 Waiver of rules.
401.124 Construction.
Authority: Delaware River Basin Compact (75 Stat. 688), unless
otherwise noted.
Source: 39 FR 25474, July 11, 1974, unless otherwise noted.
Sec. 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:
Article 1--Comprehensive Plan.
Article 2--Water Resources Program.
Article 3--Project Review Under Section 3.8 of the Compact.
Article 4--(Reserved).
Article 5--Appeals or Objections to Decisions of the Executive Director
in Water Quality Cases.
Article 6--Administrative and Other Hearings.
Article 7--Penalties and Settlements in Lieu of Penalties.
Article 8--Public Access to the Commission's Records and Information.
Article 9--General Provisions.
(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.
[62 FR 64154, Dec. 4, 1997]
Subpart A--Comprehensive Plan
Source: 62 FR 64154, Dec. 4, 1997, unless otherwise noted.
Sec. 401.1 Scope.
This subpart shall govern the submission, consideration, and
inclusion of projects into the Comprehensive Plan.
[[Page 7]]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
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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.
Sec. 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.
Sec. 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 changed substantially from the project as described in the
Comprehensive Plan will be deemed to be a new and different project for
the purposes of Article 11 of the Compact. Whenever a change is made the
sponsor shall advise the Executive Director who will determine whether
the change is deemed substantial within the meaning of 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.
Sec. 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
Sec. 401.21 Scope.
This subpart shall govern the submission, consideration and
inclusion of projects into the Water Resources Program.
Sec. 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 within the ensuing six-year period. That part of the Program
consisting of a presentation of the water resources 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.
Sec. 401.23 Procedure.
Each project 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. The project's sponsor shall furnish the following
information prior to the inclusion of the project in the Water Resources
Program:
(a) The Comprehensive Plan data brought up-to-date for the period of
the Water Resources Program.
(b) Specific location and dimension of a structural project, and
specific language of a standard, policy or other non-structural
proposal.
(c) The plan of operation of a structural project.
(d) The specific effects of a non-structural project.
[[Page 9]]
(e) Sufficient data to indicate a workable financial plan under
which the project will be carried out.
(f) A timetable for implementation.
Sec. 401.24 Preparation and adoption.
The Water Resources Program will be prepared and considered by the
Commission for adoption annually. Projects required to satisfy the basin
needs during the period covered by the Program may be classified as
follows:
(a) ``A'' list. This shall include public projects which require no
further review, and inclusion in such list shall be deemed to be
approved for the purposes of section 3.8 of the Compact.
(b) ``B'' list. This shall include public projects not included in
the ``A'' list and privately sponsored projects which are proposed or
anticipated by the Commission.
Sec. 401.25 Alternatives for public projects.
Any publc project which has been included in the Comprehensive Plan
but is not on the ``A'' list of the current Water Resources Program, at
the option of the sponsor, may be submitted for review and approval
under section 3.8 of the Compact in accordance with Subpart C of this
part.
Sec. 401.26 Inventory of other projects.
Each Water Resources Program will include, for information purposes
only, an inventory of projects approved during the previous year
pursuant to section 3.8 of the Compact but which are not part of the
Comprehensive Plan or Water Resources Program.
Subpart C--Project Review Under Section 3.8 of the Compact
Source: 62 FR 64155, Dec. 4, 1997, unless otherwise noted.
Sec. 401.31 Scope.
This subpart shall govern the submission and review of projects
under Section 3.8 of the Delaware River Basin Compact.
Sec. 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.''
Sec. 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.
Sec. 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
[[Page 10]]
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.
Sec. 401.35 Classification of projects for review under Section 3.8 of the Compact.
(a) Except as the Executive Director may specially direct by notice
to the project owner or sponsor, or as a state or federal agency may
refer under paragraph (c) of this section, a project in any of the
following classifications will be deemed not to have a substantial
effect on the water resources of the Basin and is not required to be
submitted under Section 3.8 of the Compact:
(1) The construction of new impoundments or the enlargement or
removal of existing impoundments, for whatever purpose, when the storage
capacity is less than 100 million gallons;
(2) A withdrawal from ground water for any purpose when the daily
average gross withdrawal during any 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
[[Page 11]]
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;
(i) Where neither a state nor a federal level review and permit
system is in effect, and the Executive Director determines that a
project is of major regional or interstate significance requiring action
by the Commission, or
(ii) When a Commissioner or the Executive Director determines that
the final action of a state or federal permitting agency may not
adequately reflect the Commission's policy as to wetlands of the Basin.
In the case of a project affecting less than 25 acres for which there
has been issued a state or federal permit, a determination to undertake
review and action by the Commission shall be made no later than 30 days
following notification of the Commission of such permit action. The
Executive Director, with the approval of the Chairman, may at any time
within the 30-day period inform any permit holder, signatory party or
other interested party that the Commission will decline to undertake
review and action concerning any such project;
(16) The diversion or transfer of water from the Delaware River
Basin (exportation) whenever the design capacity is less than a daily
average rate of 100,000 gallons;
(17) The diversion or transfer of water into the Delaware River
Basin (importation) whenever the design capacity is less than a daily
average rate of 100,000 gallons except when the imported water is
wastewater;
(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;
[[Page 12]]
(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) Regional wastewater treatment plans developed pursuant to the
Federal Water Pollution Control Act;
(15) Landfills and solid waste disposal facilities affecting the
water resources of the Basin;
(16) State and local standards of flood plain regulation;
(17) Electric generating or cogenerating facilities designed to
consumptively use in excess of 100,000 gallons per day of water during
any 30-day period; and
(18) Any other project that the Executive Director may specially
direct by notice to the project sponsor or land owner as having a
potential substantial water quality impact on waters classified as
Special Protection Waters.
(c) Whenever a state or federal agency determines that a project
falling within an excluded classification (as defined in paragraph (a)
of this section) may have a substantial effect on the water resources of
the Basin, such project may be referred by the state or federal agency
to the Commission for action under this part.
(d) Except as otherwise provided by Sec. 401.39 the sponsor shall
submit an application for review and approval of a project included
under paragraph (b) of this section through the appropriate agency of a
signatory party. Such agency will transmit the application or a summary
thereof to the Executive Director, pursuant to Administrative Agreement,
together with available supporting materials filed in accordance with
the practice of the agency of the signatory party.
Sec. 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
[[Page 13]]
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.
Sec. 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.
Sec. 401.38 Form of referral by State or Federal agency.
Upon approval by any State or Federal agency of 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.
Sec. 401.39 Form of submission of projects not requiring prior approval by State or Federal agencies.
Where a project does not require approval by any other State or
Federal agency, or where such approval is required but an Administrative
Agreement is not in force, the project shall be submitted directly to
the Commission for review and determination of compatibility with the
Comprehensive Plan, in such form of application, with such supporting
documentation, as the
[[Page 14]]
Executive Director may reasonably require for the administration of the
provisions of the Compact. These shall include without limitation
thereto:
(a) Exhibits to accompany application. The application shall be
accompanied by the following exhibits:
(1) Abstract of proceedings authorizing project, where applicable;
(2) General map showing specific location and dimension of a
structural project, or specific language of a standard or policy in the
case of a non-structural proposal;
(3) Section of the United States Geological Survey topographic map
showing the territory and watershed affected;
(4) Maps, drawings, specifications and profiles of any proposed
structures, or a description of the specific effects of a non-structural
project;
(5) Written report of the applicant's engineer showing the proposed
plan of operation of a structural project;
(6) Map of any lands to be acquired or occupied;
(7) Estimate of the cost of completing the proposed project, and
sufficient data to indicate a workable financial plan under which the
project will be carried out; and
(8) Analyses and conclusions of regional water supply and wastewater
investigations.
(b) Letter of transmittal. The application shall be accompanied by a
letter of transmittal in which the applicant shall include a list of all
enclosures, the names and addresses to which communications may be
directed to the applicant, and the names and addresses of the
applicant's engineer and counsel, if any.
(c) Unless otherwise ordered by the Commission, two copies of the
application and accompanying papers shall be filed. If any application
is contested, the Commission may require additional copies of the
application and all accompanying papers to be furnished by the
applicant. In such cases, certified copies of photographic prints or
reproduction may be used.
Sec. 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.
Sec. 401.41 Limitation of approval.
(a) Approval by the Commission under this part shall expire three
years from the date of Commission action unless prior thereto the
sponsor has expended substantial funds (in relation to the cost of the
project) in reliance upon such approval. An approval may be extended or
renewed by the Commission upon application.
(b) 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. Any renewed activity following that date will
require submission of a new application.
Subpart D [Reserved]
Subpart E--Appeals or Objections to Decisions of the Executive Director
in Water Qualtity Cases
Source: 62 FR 64158, Dec. 4, 1997, unless otherwise noted.
Sec. 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
[[Page 15]]
shall be conducted pursuant to the provisions of subpart F of this part.
Sec. 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.
[62 FR 64158, Dec. 4, 1997, as amended at 63 FR 45943, Aug. 28, 1998]
Sec. 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.
Sec. 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
[[Page 16]]
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.
[62 FR 64158, Dec. 4, 1997, as amended at 63 FR 45943, Aug. 28, 1998]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Source: 62 FR 64159, Dec. 4, 1997, unless otherwise noted.
Sec. 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
[[Page 17]]
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.
Sec. 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.
Sec. 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;
[[Page 18]]
(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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 19]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 401.90 Appeals from final Commission action; Time for appeals.
Any party participating in a hearing conducted pursuant to the
provisions
[[Page 20]]
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
Source: 52 FR 37602, Oct. 8, 1987, unless otherwise noted.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 401.94 Adjudicatory hearings.
(a) An adjudicatory hearing, which may be in lieu of or in addition
to proceedings pursuant to Sec. 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 Secs. 491.83 through 401.88 (including Sec. 401.86 et
seq.).
Sec. 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 Sec. 14.17 of the Compact. If it
[[Page 21]]
is found that such a violation has occurred, the Commission shall
determine the amount of the penalty to be paid.
Sec. 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.
Sec. 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 Sec. 14.17 of the Compact.
Sec. 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.
Sec. 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
Authority: Pub. L. 93-502, as amended.
Source: 40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975,
unless otherwise noted. Redesignated at 52 FR 37602, Oct. 8, 1987.
Sec. 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.
[[Page 22]]
Sec. 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.
Sec. 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 Freedom of Information Act, whether
or not the Freedom of Information Act is 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.
Sec. 401.104 Preparation of new records.
The Freedom of Information Act and 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.
Sec. 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 Federal Register
or official minutes of Commission meetings.
(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 FOIA Officer.
Sec. 401.106 FOIA Officer.
The Executive Director shall designate a Commission employee as the
FOIA Officer. The FOIA Officer shall be responsible for Commission
compliance with the Freedom of Information Act and these regulations.
All requests for agency records shall be sent in writing to:
FOIA Officer
Delaware River Basin Commission
P.O. Box 7360
West Trenton, NJ 08628-0360
[40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975. Redesignated at
52 FR 37602, Oct. 8, 1987, as amended at 63 FR 45943, Aug. 28, 1998]
Sec. 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.
Sec. 401.108 Filing a request for records.
(a) All requests for Commission records shall be filed in writing
delivered to the FOIA Officer, or by mailing it to the Commission. The
Commission will supply forms for written requests.
(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 FOIA Officer will so notify the person making the request
and indicate the additional information needed to identify the records
requested.
[[Page 23]]
(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 FOIA 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 Sec. 401.99(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 FOIA 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 a letter denying the request. This requirement may be met
by attaching a list of such individuals to the letter.
Sec. 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
FOIA Officer pursuant to Sec. 401.98(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 FOIA Officer and is logged in accordance
with Sec. 401.98(c). A request that is expected to involve fees in
excess of $50 will not be deemed received until the requester is
promptly notified and agrees to bear the cost or has so indicated on his
request.
(b) Within ten (10) working days (excepting Saturdays, Sundays, and
legal public holidays) after a request for records is logged by the FOIA
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 thirty (30) days from receipt of the FOIA Officer's determination
denying the requested information (where the entire request has been
denied), or from the receipt of
[[Page 24]]
any information made available pursuant to the request (where the
request has been denied in part). Within twenty (20) working days
(excepting Saturdays, Sundays, and legal public holidays) after receipt
of any appeal, or any authorized extension, the Executive Director or
his designee shall make a determination and notify the appellant of his
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 next 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 Sec. 401.99 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
Sec. 401.99(b), 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.
Sec. 401.110 Fees.
(a) Unless waived in accordance with the provisions of Sec. 401.101,
the following fees shall be imposed for disclosure of any record
pursuant to this part.
(1) Copying of records. Fifteen cents per copy of each page.
(2) Clerical searches. $1 for each one-quarter hour spent by
clerical personnel searching for and producing a requested record,
including time spent copying any record.
(3) Nonclerical searches. $1.80 for each one-quarter hour spent by
professional or managerial personnel searching for and producing a
requested record, including time spent copying any record.
(4) 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 FOIA
Officer.
Sec. 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.
Sec. 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
[[Page 25]]
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.
[40 FR 14056, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975. Redesignated at
52 FR 37602, Oct. 8, 1987, as amended at 63 FR 45943, Aug. 28, 1998]
Sec. 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 Sec. 401.92.
Sec. 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.
Sec. 401.115 Discretionary disclosure by the Executive Director.
(a) The Executive Director may, in his discretion, disclose part or
all of any Commission record that is otherwise exempt from disclosure
pursuant to this part. The Executive Director shall exercise his
discretion to disclose such records whenever he 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 Sec. 401.98, but shall not set a
precedent for discretionary disclosure of any similar or related record
and shall not obligate the Executive Director to exercise his discretion
to disclose any other record that is exempt from disclosure.
Sec. 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.
Sec. 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.
[[Page 26]]
Sec. 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.
Sec. 401.119 Disclosure to Congress.
All records of the Commission shall be disclosed to Congress upon an
authorized request.
Subpart I--General Provisions
Source: 40 FR 14059, Mar. 28, 1975; 40 FR 17987, Apr. 24, 1975,
unless otherwise noted. Redesignated at 52 FR 37602, Oct. 8, 1987.
Sec. 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) Sponsor shall mean any person authorized to initiate, construct
or administer a project.
Sec. 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.
Sec. 401.123 Waiver of rules.
The Commission may, for good cause shown, waive rules or require
additional information in any case.
Sec. 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--Table of Contents
Authority: Delaware River Basin Compact, 75 Stat. 688.
Sec. 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 concerning the
policies and standards 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. Article III sets forth the water quality standards and
guidelines for the Delaware River Basin. The Commission's Administrative
Manual--Part III, Water Quality Regulations, apply to all waste
dischargers, public and private, using the waters of the Delaware River
Basin. The regulations contained within the Water Code and within the
Administrative Manual--Part III Water Quality Regulations of the
Delaware River Basin Commission are hereby incorporated in and made a
part of this Part 410 and include all amendments to the Water Code and
the Administrative Manual--Part III Water Quality Regulations adopted
through May 28, 1986.
[[Page 27]]
(b) The Water Code and the Administrative Manual--Part III and the
regulations contained therein and information about them may be obtained
from the Delaware River Basin Commission, P.O. Box 7360, West Trenton,
New Jersey 08628.
(c) The regulations may be amended from time to time by the
Commission after due notice and public hearing. An official file of
changes will be kept for public inspection in the offices of the
Commission.
[51 FR 20960, June 10, 1986]
PART 415--BASIN REGULATIONS--FLOOD PLAIN REGULATIONS--Table of Contents
Generally
Sec.
415.1 Short title.
415.2 Definitions.
415.3 Purpose and findings.
Types of Projects and Jurisdiction
415.20 Class I projects.
415.21 Class II projects.
Standards
415.30 Regulations generally.
415.31 Prohibited uses.
415.32 Permitted uses generally.
415.33 Uses by special permit.
Administration
415.40 Administrative agency.
415.41 Special permits.
415.42 Technical standards.
415.43 Mapped and unmapped delineations.
Enforcement
415.50 General conditions.
415.51 Prior non-confirming structures.
415.52 Violations.
Authority: Pub. L. 87-328 (75 Stat. 688).
Source: 42 FR 13541, Mar. 11, 1977, unless otherwise noted.
Generally
Sec. 415.1 Short title.
This part shall be known and may be cited as the ``Flood Plain
Regulations.''
Sec. 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.)
[[Page 28]]
[GRAPHIC] [TIFF OMITTED] TC05OC91.022
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.
[[Page 29]]
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:
Pennsylvania
Brandywine Creek, Brodhead Creek, Big Bushkill Creek, Lackawaxen,
Lehigh, Schuylkill, Neshaminy.
Delaware
Brandywine Creek, Christina.
New York
East Branch, Mongaup, Neversink, West Branch.
New Jersey
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.
Sec. 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
Sec. 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
Sec. 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 Secs. 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.
[[Page 30]]
(b) State and local standards of flood plain regulation.
Sec. 415.21 Class II projects.
Class II projects, subject to review in accordance with Secs. 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
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 31]]
Sec. 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
Sec. 415.40 Administrative agency.
(a) Class I projects as defined by Sec. 415.20 of this part shall be
subject to review and approval by the Commission.
(b) Class II projects as defined by Sec. 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
[[Page 32]]
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.
Sec. 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.
Sec. 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.
State and local agencies may use methods resulting in Q 100s which are
in reasonable agreement with those of the Commission. Any significant
difference shall be reviewed with and subject to approval by the
Executive Director.
(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
[[Page 33]]
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.
Sec. 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
Sec. 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.
Sec. 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
Secs. 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.
Sec. 415.52 Violations.
Any violation of this regulation shall be subject to penalties
imposed by the Compact.
PART 420--BASIN REGULATIONS--WATER SUPPLY CHARGES--Table of Contents
General
Sec.
420.1 Definitions.
Water Supply Policy
420.21 Policy.
420.22 Prohibition; sanctions.
420.23 Exempt uses under the Compact.
[[Page 34]]
420.24 Effective date of rates.
Entitlement; Measurement; Billing
420.31 Certificate of entitlement.
420.32 Measurement and billing of water taken.
420.33 Payment of bills.
Charges; Exemptions
420.41 Schedule of water charges.
420.42 Contracts; minimum charge.
420.43 Exempt use.
420.44 Cooling water.
420.45 Historical use.
Hydroelectric Power Water Use Charges
420.51 Hydroelectric power plant water use charges.
Authority: Delaware River Basin Compact, 75 Stat. 688.
Source: 42 FR 13544, Mar. 11, 1977, unless otherwise noted.
General
Sec. 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
Sec. 420.21 Policy.
The provisions of this part 420 implement Commission Resolution No.
71-4 (Comprehensive Plan) relating to water supply charges.
Sec. 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.
Sec. 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;
[[Page 35]]
(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.
Sec. 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
Sec. 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) A certificate of entitlement is not transferable, except as
provided in paragraphs (e) and (f) of this section. For the purposes of
this section, transfer shall mean any sale or other conveyance by a
holder of a certificate of entitlement involving a specific facility and
shall include any transfer which results in a change of ownership and/or
control of the facility or of the stock, or other indicia of ownership
of a corporation which holds title to the facility.
(e) Whenever ownership or possession of land in agricultural use is
transferred, a certificate of entitlement with respect to such land
shall be deemed to run with the land, so long as the water use continues
to be for agricultural irrigation. Upon any such land transfer, the
Executive Director will reissue a certificate of entitlement to the new
user.
(f) A certificate of entitlement may be transferred in connection
with a corporate reorganization within any of the following categories:
(1) Whenever property is transferred to a corporation by one or more
persons solely in exchange for stock or securities of the same
corporation, provided that immediately after the exchange the same
person or persons are
[[Page 36]]
in control of the transferee corporation; that is, they own 80 percent
of the voting stock and 80 percent of all other stock of the
corporation; or
(2) Where such transfer is merely a result of a change of the name,
identify, internal corporate structure or place of organization of a
corporate holder of a certificate of entitlement and does not affect
ownership and/or control.
[42 FR 13544, Mar. 11, 1977, as amended at 59 FR 64571, Dec. 15, 1994]
Sec. 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.
Sec. 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
Sec. 420.41 Schedule of water charges.
The Commission will from time to time, after public notice and
hearing, make, amend and revise a schedule of water charges. Until
changed, the charge for water shall be as follows:
(a) Six cents per thousand gallons for consumptive use; and
(b) Six-tenths of a mill per thousand gallons for nonconsumptive
use.
[42 FR 13544, Mar. 11, 1977, as amended at 43 FR 56655, Dec. 4, 1978]
Sec. 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.
Sec. 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
[[Page 37]]
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.
Sec. 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.
Sec. 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
Sec. 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.
[53 FR 45260, Nov. 9, 1988]
[[Page 38]]
SUBCHAPTER B--SPECIAL REGULATIONS
PART 430--GROUND WATER PROTECTION AREA: PENNSYLVANIA--Table of Contents
Sec.
430.1 Policy.
430.3 Purpose.
430.5 Definitions.
430.7 Determination of protected areas and restriction on water use.
430.9 Comprehensive plan policies.
430.11 Advance notice of exploratory drilling.
430.13 Protected area permits for new withdrawals.
430.15 Conservation requirements.
430.17 Registration of existing withdrawals.
430.19 Ground water withdrawal metering, recording, and reporting.
430.21 Protection of existing users.
430.23 Technical determinations and procedures.
430.25 Other permit requirements.
430.27 Emergencies.
430.29 Appeals.
430.31 Sanctions: Civil and criminal.
430.33 Duration.
430.35 Amendments.
Authority: Pub. L. 87-328 (75 Stat. 688).
Source: 46 FR 24, Jan. 2, 1981, unless otherwise noted.
Sec. 430.1 Policy.
The provisions of this part implement Commission Resolutions 80-18
and 80-27 relating to ground water protection in southeastern
Pennsylvania.
Sec. 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.
Sec. 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
[[Page 39]]
section 10.3 of the Delaware River Basin Compact and this regulation.
Sec. 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:
Southeastern Pennsylvania Ground Water Protected Area
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.
Sec. 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]
Sec. 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
[[Page 40]]
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 Sec. 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.
Sec. 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.
[[Page 41]]
(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 Sec. 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 Sec. 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
Sec. 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
[[Page 42]]
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:
------------------------------------------------------------------------
Potentially
Subbasin Stressed (mgy) Withdrawal
\1\ 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 505 673
Creek..................................
Park Creek Basin........................ 582 776
Warminster Subbasin Little Neshaminy 1016 1355
Creek..................................
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
[[Page 43]]
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
[[Page 44]]
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
Sec. 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.
[46 FR 24, Jan. 2, 1981, as amended at 50 FR 5973, Feb. 13, 1985; 63 FR
6477, Feb. 9, 1998; 64 FR 35566, July 1, 1999]
Sec. 430.15 Conservation requirements.
The following conservation requirements shall apply to all existing,
new
[[Page 45]]
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.
Sec. 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.
Sec. 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
[[Page 46]]
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 Sec. 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 Sec. 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.
(Delaware River Basin Compact, 75 Stat. 688)
[51 FR 25031, July 10, 1986]
Sec. 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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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
Secs. 430.11 and 430.13 of this part shall be as follows:
------------------------------------------------------------------------
Radius from the
proposed
Quantity of cumulative proposed withdrawal (gpd) 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 Sec. 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
[[Page 47]]
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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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 Sec. 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.
[47 FR 21776, May 20, 1982. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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,
[[Page 48]]
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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
Sec. 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.
[46 FR 24, Jan. 2, 1981. Redesignated at 51 FR 25031, July 10, 1986]
[[Page 49]]
CHAPTER VI--WATER RESOURCES COUNCIL
--------------------------------------------------------------------
Part Page
701 Council organization........................ 51
704 Plan formulation standards and procedures... 65
705 Nondiscrimination in federally assisted
programs--effectuation of Title VI of
the Civil Rights Act of 1964............ 66
706 Employee responsibilities and conduct....... 74
707 Compliance with the National Environmental
Policy Act (NEPA)....................... 81
708 Upper Mississippi River Basin Commission:
Public participation in Upper
Mississippi River System Master Plan.... 85
725 Implementation of Executive Orders 11988,
Floodplain Management and 11990,
Protection of Wetlands.................. 90
740 State Water Management Planning Program..... 92
[[Page 51]]
PART 701--COUNCIL ORGANIZATION--Table of Contents
Subpart A--Introduction
Sec.
701.1 General.
701.2 Creation and basic authority.
701.3 Purpose of the Water Resources Council.
701.4 Functions.
701.5 Organization pattern.
701.6 Location of office.
Subpart B--Headquarters Organization
701.51 The Council.
701.52 Definitions.
701.53 Council decisions by Members.
701.54 Interagency Liaison Committee.
701.55 Associate Members.
701.56 Observers.
701.57 Official decisions of the Council.
701.58 Task forces.
701.59 Advisory committees.
701.60 Procedures for revision of rules and regulations.
701.71 The Chairman.
701.76 The Water Resources Council Staff.
701.77 Director--duties and responsibilities.
701.78 Director--delegation of authorities.
701.79 Selection policy for professional personnel.
Subpart C--Field Organization
701.100 Field Directors.
701.101 Field committees.
701.102 Existing committees.
Subpart D--Availability of Information
701.200 Statement of policy.
701.201 Availability of records and informational materials.
701.202 Procedure for requests for information.
701.203 Schedule of fees.
701.204 Time limits for WRC initial determinations regarding requests
for information.
701.205 Time limit for requester to appeal an initial adverse
determination.
701.206 Time limit for WRC final determinations regarding requests for
information appealed by the requester from an initial adverse
determination.
701.207 Extension of time limits for WRC initial and final
determinations.
701.208 WRC petition for judicial extension of time.
701.209 River basin commissions and field committees.
Subpart E--Protection of Privacy
701.300 Purpose and scope.
701.301 Definitions.
701.302 Procedures for notification of existence of records pertaining
to individuals.
701.303 Conditions of disclosure.
701.304 Procedures for identification of individuals making requests.
701.305 Procedures for requests for access to or disclosure of records
pertaining to individuals.
701.306 Special procedure: Medical records.
701.307 Request for correction or amendment to record.
701.308 Council review of request for correction or amendment of
record.
701.309 Appeal of initial adverse determination.
701.310 Disclosure of record to person other than the individual to
whom it pertains.
701.311 Accounting for disclosures.
701.312 Fees.
701.313 Penalties.
701.314 Exemptions.
Authority: Sec. 402, Pub. L. 89-80; 79 Stat. 244, as amended (42
U.S.C. 1962-1962d-5), unless otherwise noted.
Subpart A--Introduction
Source: 43 FR 25944, June 15, 1978, unless otherwise noted.
Sec. 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.
Sec. 701.2 Creation and basic authority.
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
[[Page 52]]
section 402 of the Act (42 U.S.C. 1962d-1).
[41 FR 20548, May 19, 1976]
Sec. 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).
Sec. 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.
Sec. 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
[[Page 53]]
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.
Sec. 701.6 Location of office.
The Headquarters is located in the Washington, DC area.
Subpart B--Headquarters Organization
Source: 43 FR 25945, June 15, 1978, unless otherwise noted.
Sec. 701.51 The Council.
Decisions of the Council are made as hereinafter described in
Secs. 701.53 and 701.54.
Sec. 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 Sec. 701.53(a) when the alternate is acting
for one of the above-named.
Sec. 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 Sec. 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.
[[Page 54]]
(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.
[43 FR 25945, June 15, 1978, as amended at 45 FR 24460, Apr. 10, 1980]
Sec. 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.
[43 FR 25945, June 15, 1978, as amended at 45 FR 58834, Sept. 5, 1980]
Sec. 701.55 Associate Members.
(a) The Chairman, with concurrence of the Council, may invite the
heads of other Federal agencies having authorities and responsibilites
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
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 55]]
(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.
Sec. 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.
Sec. 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 Sec. 701.53. Proposed revisons adopted by the Council in
accordance with Sec. 701.53 will be published in the Federal Register as
proposed interim, or final changes. Proposed or interim changes shall be
subject to a minimum 60-day public comment period; after the comment
period, the Water Resources Council will publich notice that the
revision is final as written or as changed to reflect comment or is
revoked. Final changes will not be subject to a public comment period
following publication in the Federal Register and will become effective
when published or at specified date.
[44 FR 72584, Dec. 14, 1979]
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 56]]
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 Sec. 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 Sec. 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.
Sec. 701.78 Director--delegation of authorities.
(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.
[[Page 57]]
(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.
Sec. 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
Source: 39 FR 20590, June 12, 1974, unless otherwise noted.
Sec. 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.
Sec. 701.101 Field committees.
The Council may establish or continue already established regional
committees to carry out assigned functions at field level.
Sec. 701.102 Existing committees.
Field Committees operating under the Water Resources Council
(formerly under the Inter-Agency Committee on Water Resources) are as
follows:
Pacific Southwest Inter-Agency Committee
Arkansas-White-Red Inter-Agency Committee
Southeast Basins Inter-Agency Committee
[[Page 58]]
Subpart D--Availability of Information
Authority: 5 U.S.C. 552 as amended by Pub. L. 93-502, 88 Stat. 1561;
42 U.S.C. 1962d-1.
Source: 40 FR 7253, Feb. 19, 1975, unless otherwise noted.
Sec. 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.
Sec. 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 Sec. 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.
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 subsection.
Sec. 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.
[[Page 59]]
(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.
Sec. 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 Sec. 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 x 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.
Sec. 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.
Sec. 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
[[Page 60]]
available pursuant to the initial adverse determination (in cases of
partial denials).
Sec. 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).
Sec. 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 Sec. 701.203 or Sec. 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.
Sec. 701.208 WRC petition for judicial extension of time.
The provisions of Sec. 701.206 notwithstanding, the Director may
petition for judicial extension of time when exceptional circumstances
warrant such action.
Sec. 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:
Great Lakes Basin Commission, P.O. Box 999, Ann Arbor, Michigan 48106;
New England River Basins Commission, 55 Court Street, Boston,
Massachusetts 02108;
Ohio River Basin Commission, 36 East 4th Street, Suite 208-220,
Cincinnati, Ohio 45202;
Pacific Northwest River Basins Commission, P.O. Box 908, Vancouver,
Washington 98660;
Upper Mississippi River Basin Commission, Federal Office Building, Room
510, Fort Snelling, Twin Cities, Minnesota 55111;
Missouri River Basin Commission, 10050 Regency Circle, Suite 403 Omaha,
Nebraska 68114.
(2) Field Committees:
Arkansas-White-Red Inter-Agency Committee, Room 4030, Federal Building,
Albuquerque, New Mexico 87101;
[[Page 61]]
Pacific Southwest Inter-Agency Committee, 630 Sansome Street, Room 1216,
San Francisco, California 94111;
Southeast Basins Inter-Agency Committee, 402 New Walton Building,
Atlanta, Georgia 30303.
[40 FR 7253, Feb. 19, 1975, as amended at 40 FR 10668, Mar. 7, 1975]
Subpart E--Protection of Privacy
Authority: Sec. 402, Water Resources Planning Act of 1965 (Sec. 402,
Pub. L. 89-80; 79 Stat. 254, as amended (42 U.S.C. 1962d-1)) and the
Privacy Act of 1974 (Pub. L. 93-579; 88 Stat. 1896 (5 U.S.C. 552a)).
Source: 40 FR 45676, Oct. 2, 1975, unless otherwise noted.
Sec. 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).
Sec. 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.
Sec. 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 Federal Register as
required by that Act. Any individual may request the Council to inform
him or her whether a particular record system named by the individual
contains a record pertaining to him or her. The request may be made in
person during business hours or in writing at the location and to the
person specified in the notice describing that record system.
(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 a.m. through 4:30
p.m., Monday through Friday, excluding legal holidays).
(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.
[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976]
[[Page 62]]
Sec. 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 Sec. 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.
Sec. 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 Sec. 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
[[Page 63]]
paragraph (b)(1) of this section, acceptable to the Council.
[41 FR 8343, Feb. 26, 1976]
Sec. 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
Sec. 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 Sec. 701.312),
within 10 working days; except that if the request for access was not
preceded by a notification request as provided in Sec. 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.
[41 FR 8343, Feb. 26, 1976]
Sec. 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 Sec. 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.
[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976]
Sec. 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.
Sec. 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 Sec. 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.
[[Page 64]]
(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
Sec. 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
Sec. 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.
[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8343, Feb. 26, 1976]
Sec. 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.
[40 FR 45676, Oct. 2, 1975, as amended at 41 FR 8344, Feb. 26, 1976]
Sec. 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 Sec. 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
[[Page 65]]
birth certificate, certified copy of a court order, or similar
documents, and proof of the individual's identity in a form that
complies with Sec. 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.
Sec. 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
Sec. 701.303 except Sec. 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 Sec. 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 Sec. 701.305.
(c) Notification of disclosure. When a record is disclosed pursuant
to Sec. 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.
[41 FR 8344, Feb. 26, 1976]
Sec. 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 x 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.
[40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26, 1976]
Sec. 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.
[40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26, 1976]
Sec. 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).
[40 FR 45676, Oct. 2, 1975. Redesignated at 41 FR 8344, Feb. 26, 1976]
PART 704--PLAN FORMULATION STANDARDS AND PROCEDURES--Table of Contents
Subparts A-D [Reserved]
[[Page 66]]
Subpart E--Standards for Plan Formulation and Evaluation
Authority: Sec. 402, 79 Stat. 254; 42 U.S.C. 1962d-1.
Sec. 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\5/8\ percent
except as provided by paragraph (d) of this section.
(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.
[33 FR 19170, Dec. 24, 1968]
PART 705--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents
Sec.
705.1 Purpose.
705.2 Definitions.
705.3 Application of this part.
705.4 Discrimination prohibited.
705.5 Assurance required.
705.6 Compliance information.
705.7 Conduct of investigations.
705.8 Procedure for effecting compliance.
705.9 Hearings.
705.10 Decisions and notices.
705.11 Judicial review.
705.12 Effect on other regulations.
Authority: Sec. 602 of Pub. L. 88-352, 78 Stat. 252, (42 U.S.C. 2000
d--1), and sec. 402 of Pub. L. 89-80, 79 Stat. 254, (42 U.S.C. 1962 d--
1).
Source: 39 FR 41521, Nov. 29, 1974, unless otherwise noted.
Sec. 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
[[Page 67]]
benefits of, or otherwise be subjected to discrimination under any
program or activity receiving Federal financial assistance from the
Water Resources Council.
Sec. 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.
Sec. 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 Sec. 705.4(c).
[[Page 68]]
Sec. 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
[[Page 69]]
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.
Sec. 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 Sec. 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 Sec. 705.4 of this part.
Sec. 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,
[[Page 70]]
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.
Sec. 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 Sec. 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.
[[Page 71]]
Sec. 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
Sec. 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 Sec. 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.
Sec. 705.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 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
[[Page 72]]
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 Sec. 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 Sec. 705.10.
Sec. 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
[[Page 73]]
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 Sec. 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
[[Page 74]]
order issued under paragraph (f) of this section shall remain in effect.
Sec. 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.
Sec. 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 Sec. 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--Table of Contents
Subpart A--General Provisions
Sec.
706.101 Purpose.
706.102 Definitions.
706.103 Remedial action.
706.104 Interpretation and advisory service.
Subpart B--Conduct and Responsibilities of Employees
706.201 Proscribed actions.
706.202 Gifts, entertainment, and favors.
706.203 Outside employment and activity.
706.204 Financial interests.
706.205 Misuse of information.
706.206 Support of Council programs.
706.207 Use of Government property.
706.208 Indebtedness.
706.209 Gambling, betting, and lotteries.
706.210 Coercion.
706.211 General conduct prejudicial to the Government.
706.212 Miscellaneous statutory provisions.
Subpart C--Conduct and Responsibilities of Special Government Employees
706.301 Use of Government employment.
706.302 Use of inside information.
706.303 Gifts, entertainment, and favors.
706.304 Applicability of other provisions.
Subpart D--Statements of Employment and Financial Interests
706.401 Employees required to submit statements.
706.402 Employee's complaint on filing requirements.
706.403 Form of statements.
706.404 Time for submission of statements.
706.405 Supplementary statements.
706.406 Interests of employees` relatives.
706.407 Information not known by employees.
706.408 Information not required.
706.409 Opportunity for explanation of conflict or appearance of
conflict.
706.410 Confidentiality of statements.
706.411 Effect of statements on other requirements.
706.412 Submission of statements by special Government employees.
706.413 Submission of statements by River Basin Commission Chairmen.
Authority: Water Resources Planning Act, 1965 (Sec. 402, Pub. L. 89-
80, 79 Stat. 254 (42 U.S.C. 1962d-1)); E.O. 11222 (30 FR 6469, 3 CFR
Proc. 3279; as amended); 5 CFR Part 735 (33 FR 12487).
Source: 40 FR 32818, Aug. 4, 1975, unless otherwise noted.
Subpart A--General Provisions
Sec. 706.101 Purpose.
The maintenance of unusually high standards of honesty, integrity,
impartiality, and conduct by employees and
[[Page 75]]
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.
Sec. 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 Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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
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(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 Sec. 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.
Sec. 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;
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(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.
Sec. 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.
Sec. 706.205 Misuse of information.
For the purpose of furthering a private interest an employee shall
not, except as provided in Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
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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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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).
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(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
Sec. 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.