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PA Bulletin, Doc. No. 07-1653

PROPOSED RULEMAKING

DELAWARE RIVER
BASIN COMMISSION

Interim Action Concerning Operation of the New York City Delaware Basin Reservoirs Pending Rulemaking to Implement a Flexible Flow Management Program; Notice of Public Hearing on Interim Action; Advance Notice of Proposed Rulemaking

[37 Pa.B. 4871]
[Saturday, September 8, 2007]

Summary

   The Delaware River Basin Commission (Commission) will hold a public hearing to receive comments on an interim New York City Delaware River Basin reservoir operations plan. An interim operations plan is proposed to be implemented pending unanimous agreement on a revised Flexible Flow Management Program (FFMP) proposal by the Parties to the United States Supreme Court Decree of 1954--the states of Delaware, New Jersey, and New York, the Commonwealth of Pennsylvania and the City of New York--and completion by the Commission of a rulemaking process on the FFMP proposal.

Dates

   The public hearing will take place on Wednesday, September 26, 2007, during the Commission's regular business meeting, beginning at 1:30 p.m. at the Commission's office building, located at 25 State Police Drive, West Trenton, NJ. Directions are available on the Commission's website, www.drbc.net. Please do not rely upon MapQuest or other Internet mapping services for driving directions, as they may not provide accurate directions to the Commission. Written comments will be accepted through the close of the public hearing; however, earlier submittals would be appreciated. Written comments may be submitted by email to paula.schmitt@drbc.state.nj.us; by United States mail to Commission Secretary, DRBC, P. O. Box 7360, West Trenton, NJ 08628-0360 or by fax to (609) 883-9522. In all cases, the commentator's name, affiliation and address should be provided in the comment document, and ''FFMP'' should appear in the subject line. Persons wishing to testify are asked to register in advance with the Commission Secretary at (609) 883-9500, Ext. 203.

Previously Submitted Comments

   Written comments submitted to the Commission during the prior comment period or presented orally or in writing at its prior scheduled hearings on the form of the FFMP that was posted on the Commission's website in February 2007 will be included in the administrative record for this action and need not be resubmitted.

Supplementary Information

   The Decree Parties have considered the broad range of public comments received on an initial FFMP proposal published in February 2007. With the administrative support of the Commission staff and the Delaware River Master, the Parties continue to work towards a consensus proposal that incorporates changes made in response to those comments. The Parties' efforts are now focused on completing negotiations by early September 2007. To be implemented by the Commission, the relevant portions of any revised FFMP proposal developed by the Parties must be promulgated as a rule or adjudicated in a docket by incorporating them into: (a) amendments to the Commission's Water Code; (b) one or more Commission dockets (similar to permits) or docket revisions; or (c) a combination of Water Code amendments and dockets. The Commission's Comprehensive Plan may also require revision.

   Insufficient time remains to complete a full notice and comment rulemaking process before the Commission's next public meeting and hearing on September 26, 2007. Thus, if the Parties reach consensus on a revised FFMP on or before September 26, the Commission will consider approving an interim New York City Delaware River Basin reservoir operations plan on September 26 to be implemented pending completion of a rulemaking process on the revised FFMP. The interim action could consist of: (1) extending the current fisheries management program (Revision 7 of Docket D-77-20 CP); (2) reinstating a previous flow regime; or (3) implementing in whole or in part the consensus FFMP as proposed on an interim basis.

   If the Commission acts to extend the current fisheries management program or to reinstate a previous flow regime, the program will be considered in combination with a spill mitigation program such as Revision 9 of Docket D-77-20 CP, which is currently in effect, and a program designed to ameliorate the potential effects on the tailwaters fishery of the Lake Wallenpaupack drought operating plan adopted by Resolution No. 2002-33. Any interim operations program that the Commission selects would be implemented simultaneously with a full notice and comment rulemaking process on rules to implement any FFMP proposal unanimously consented to by the Decree Parties. An interim program approved by the Commission and the Decree Parties would continue in effect until any expiration date contained in the program adopted or unless and until replaced by another program that has been approved by the Commission and the Decree Parties following notice and a public hearing.

   In the event consensus is not reached on the FFMP on or before the Commission's meeting on September 26, the Commission will consider options 1 and 2 listed previously. In accordance with Section 3.3 of the Delaware River Basin Compact, 75 Statutes at Large 688, any program of the Commission that affects the diversions, compensating releases, rights, conditions, and obligations of the 1954 Supreme Court Decree in the matter of New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 842 also requires the unanimous consent of the Decree Parties.

   The current reservoir releases program, established by Resolution No. 2004-3, and the current spill mitigation program, established by Resolution No. 2006-18, both were due to expire on May 31, 2007. In light of ongoing efforts by the Decree Parties to develop a revised consensus FFMP proposal, the Commission extended both programs through September 30, 2007, by Resolution No. 2007-7 on May 10, 2007.

   A notice concerning the original FFMP proposal of the Decree Parties appeared at 37 Pa.B. 785 (February 17, 2007) and in 72 FR 6509 (February 12, 2007). Subsequently, an advance notice concerning rulemaking to implement a revised FFMP proposal was published at 37 Pa.B. 3098 (July 7, 2007). That notice advised that the text of the proposed rule changes would be posted on the Commission's website on or before July 16, 2007, and those public hearings would be held on August 14, 2007. Because the Decree Parties did not reach consensus on the revised proposal, the August 14 hearings were cancelled.

   Resolutions and docket approvals relating to operation of the New York City Delaware Basin Reservoirs are available on the Commission's website at www.drbc.net or upon request from the Delaware River Basin Commission, P. O. Box 7360, West Trenton, NJ 08628-0360.

Further Information and Contact

   For further information, contact Pamela M. Bush, Commission Secretary and Assistant General Counsel, DRBC, at (609) 883-9500, Ext. 203.

PAMELA M. BUSH,   
Secretary

[Pa.B. Doc. No. 07-1653. Filed for public inspection September 7, 2007, 9:00 a.m.]


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