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Final Rule: Amendments to the DRBC's Rules of Practice and Procedure (RPP)
Final Rule: Key Info

Title:

Amendments to 18 CFR Part 401 Rules of Practice and Procedure

Action:

Final Rule, adopted June 5, 2024 (effective July 22, 2024)

Summary:

By Resolution No. 2024-06 on June 5, 2024, the DRBC approved amendments to its Rules of Practice and Procedure, 18 C.F.R. Part 401 (RPP), to:

  • resolve ambiguities concerning the automatic termination of DRBC project approvals and make conforming amendments to related provisions as appropriate;

  • update the Commission's Water Resources Program and Project Review procedures to better conform them to current practice;

  • remove references to the federal Freedom of Information Act ("FOIA") that may create confusion about the regulations applicable to requests for Commission public records*; and

  • align pronouns with the Commission's policies regarding diversity, inclusion and belonging.

*This rulemaking proposed no substantive changes to the Commission's Public Access to Records regulations.

Key Information:

Please Note:

  • The text on this page and all html webpages on the DRBC website can be translated into multiple languages using the Google Translate widget found at the top right of each webpage.

  • Requests for translation of additional documents related to this rulemaking can be made by contacting translate@drbc.gov.
Final Rule Text & Comparison to Former Rule & Proposal

Final Part 401

Redline comparison of final Part 401 to former Part 401

Redline comparison of final Part 401 to proposed Part 401
Summary of Changes from Proposed Rule

In response to comments received during the public comment period, the Commission modified the proposed rule in several respects.

Key Changes Include:

  • Action on request for extension. The Commissioners, not the Executive Director, will approve or deny all requests for extended or renewed approval under amended § 401.41(a) and (b), respectively. In conjunction with this change, rather than establishing a prescribed extension term of five years, the final rule at § 401.41(a) provides for the Commissioners to grant an extension of up to five years.

  • Eligibility for extension. To qualify for extension of a docket approval that would otherwise expire under § 401.41, in addition to demonstrating that approved activities, site conditions and the Comprehensive Plan have not materially changed, the docket holder (project sponsor) will be required to demonstrate that it "is diligently pursuing the project as shown by its planning, construction or project operational activities, its project expenditures, its efforts to secure government approvals necessary for the project, or its active participation in appeals of government decisions on its applications for government approvals."

The docket holder will not be required to demonstrate that it has expended a fixed, minimum dollar amount, a proposal to which commenters objected. Nor will the docket holder be obligated to show that it has expended a substantial sum in relation to the project cost, as the rule originally provided, or to show that it has expended a fixed percentage representing a substantial sum in relation to the total cost of the project, as some commenters proposed. In the Commission's view, these approaches are impracticable where the project costs consist primarily of construction costs, and where the sponsor could not lawfully or reasonably commence construction because all final permits have not been secured.

  • Required public process. The Commission will publish notice that it has received a request for a docket extension under § 401.41(a) and provide an opportunity for written comment of at least ten days' length on whether the docket holder has demonstrated all elements requisite for an extension—i.e., that the approved activities, site conditions and Comprehensive Plan have not materially changed and that the project sponsor has diligently pursued the project in reliance on the Commission's approval. The project sponsor will be afforded an opportunity to respond to the comments received but will not be obligated to do so. The Commission will provide notice at least ten days prior to the date of a business meeting at which the Commissioners consider action on a request pursuant to § 401.41(a).

  • Public hearing. A public hearing will be provided if three or more Commission members request in writing to the Executive Director or by vote at a public meeting that one be held.

Additional Modifications Made:

  • Administrative continuance. A provision was added to address the situation where a request for extension is timely, but final Commission action on the request occurs after the docket would otherwise expire. In such instances, the final rule provides that the docket will be administratively continued pending final Commission action.

  • Construction complete. A provision has been added to make clear that if the authorized activities are limited to construction activities, an extension in accordance with § 401.41(a) is no longer required once construction is complete. Because some dockets issued for construction activities impose ongoing obligations on docket holders, this provision further states that the expiration of the docket, including any approved extension, does not eliminate ongoing docket obligations expressly identified as such in the docket approval. Such an obligation, for example, might consist of a requirement that flood warning signage be maintained or deed or lease restrictions relating to notice about potential flooding be continued indefinitely in a residential building constructed in a floodplain.

  • Process for re-application. Under the final rule, if a request for extension under § 401.41(a) is denied, and the project sponsor wishes to apply for renewal of its approval under paragraph (b), the project sponsor’s application and the associated review fee must be received by a date to be established by the Commission. In this situation, the docket approval is not thereafter administratively continued automatically. However, the Commission may, in its discretion, administratively extend the docket approval in whole or in part for a period ending on or before the date on which the Commission renders a final decision on the sponsor’s renewal application.

  • Language of final § 401.41(b). The final language adopted for § 401.41(b) has been modified from the language as proposed to more accurately reflect that the burden is on the docket holder to demonstrate eligibility for an extension under § 401.41(a).
Proposed Rule: Full Details & Comments Received

View Complete Information on the Proposed Rulemaking:

Notice of Proposed Rulemaking & Public Hearing:

View Submissions & Comments Received:

The Commission received a total of 209 submissions (199 written submissions and 10 oral submissions at the public hearings). Please note that each submission can contain multiple comments.
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This Notice of Final Rule was posted June 6, 2024