Review and Approval of Projects
| Published date | 21 March 2024 |
| Record Number | 2024-06035 |
| Citation | 89 FR 20148 |
| Court | Susquehanna River Basin Commission |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 56 (Thursday, March 21, 2024)
[Federal Register Volume 89, Number 56 (Thursday, March 21, 2024)]
[Proposed Rules]
[Pages 20148-20150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06035]
=======================================================================
-----------------------------------------------------------------------
SUSQUEHANNA RIVER BASIN COMMISSION
18 CFR Part 801
Review and Approval of Projects
AGENCY: Susquehanna River Basin Commission.
ACTION: Notice of proposed rulemaking; notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed rules that would amend the
regulations of the Susquehanna River Basin Commission (Commission) to
provide rules for agency procurement and bid protest procedures. This
rulemaking also updates the general policies of the Commission to
include climate change and environmental justice, revises the
procedures regarding the adoption of the comprehensive plan and adds
language memorializing the Commission's Dry Cooling Resolution. These
rules are designed to clarify the Commission's existing authorities to
manage the water resources of the basin and provide transparency and
accountability procedures to the Commission's public procurement
practices.
DATES: Comments on the proposed rulemaking may be submitted to the
Commission on or before May 13, 2024. The Commission has scheduled a
public hearing on the proposed rulemaking to be held by in person and
by telephone on May 2, 2024. The location of the public hearing is
listed in the ADDRESSES section of this document.
ADDRESSES: Comments may be mailed to: Jason E. Oyler, Esq., General
Counsel, Susquehanna River Basin Commission, 4423 N Front Street,
Harrisburg, PA 17110-1788, or emailed to [email protected]. This
public hearing will be conducted in person and by telephone. You may
attend in person at Susquehanna River Basin Commission, 4423 N Front
St., Harrisburg, Pennsylvania, or join by telephone at Toll-Free Number
1-877-304-9269 and then enter the guest passcode 2619070 followed by #.
Those wishing to testify are asked to notify the Commission in advance,
if possible, at the regular or electronic addresses given below.
FOR FURTHER INFORMATION CONTACT: Jason E. Oyler, Esq., General Counsel,
telephone: 717-238-0423, ext. 1312; fax: 717-238-2436; email:
[email protected]. Also, for further information on the proposed
rulemaking, visit the Commission's website at http://www.srbc.net.
SUPPLEMENTARY INFORMATION: The Commission is proposing revisions to
Part 801 to add rules for agency procurement and bid protest procedures
and amend the existing rules to include climate change and
environmental justice, to revise the procedures regarding the adoption
of the comprehensive plan and to memorialize the Commission's Dry
Cooling Resolution.
Addition of Sec. 801.15 Commission Procurement Procedures; Protests
The Commission, as an independent compact agency, is not subject to
any of its member jurisdictions' laws regarding public procurement. The
Susquehanna River Basin Compact provides the rules governing purchasing
by the Commission in Section 15.9. The Compact also provides the
Commission the ability to provide for the internal organization and
administration of the Commission (Section 15.1(b)(3)) and to make rules
and regulations to effectuate the Compact (Section 15.2).
As a companion to this rulemaking, the Commission is also seeking
comment on a proposed policy entitled ``SRBC Procurement Procedures''
that outlines the details and procedures related to the purchasing and
procurement of goods and services by the Commission. The adoption and
any revisions to this policy shall be consistent with Sec. 15.9 of the
Compact and undertaken in accordance with appropriate public notice and
comment consistent with the requirements of 18 CFR 808.1(b).
The goal of the rulemaking is to provide more transparency to the
Commission's procurement process as well as to establish a bid protest
procedure. The proposed rule provides that a protest must be filed with
the Commission within ten calendar days after the aggrieved protestant
knew or should have known of the facts giving rise to the protest. In
no event may a protest be filed later than ten calendar days after the
date the contract was awarded. These time frames differ from the 30 day
appeal period for other administrative appeals in 18 CFR 808.2, but are
generally in line with the bid protest timelines of our member
jurisdictions. The rule outlines the exclusive procedure for
procurement protests before the Commission.
Other Changes Proposed to Part 801
The proposed rulemaking also provides other changes to the existing
Part 801 that the Commission deems beneficial. The Commission proposes
to amend Sec. 801.2 to remove paragraph (b)(9) requiring periodic
reports be submitted to the Commission as that practice no longer
occurs. In its place, the Commission proposes to work with our member
jurisdictions on actions that can be taken to improve climate
resiliency and address environmental justice. This change reflects the
additions of these critical issues to the Commission's adopted 2021-
2041 Comprehensive Plan.
Additional changes are proposed to revise Sec. 801.5 related to
the Comprehensive Plan. The process, presentation and layout for the
adoption of the Comprehensive Plan has evolved since 1973. The proposed
revisions more accurately reflect the modern process that was most
recently used in 2021, but also are designed in a way that is meant to
be more adaptable for future plan revisions and adoptions. Notably, the
proposed process in Sec. 801.5(a)(4) will enable the list of projects
approved by the Commission each quarter to be included in the
Comprehensive Plan by their continual updating in the publicly
available viewer application (currently the Water Application and
Approval Viewer, or WAAV).
Finally, the Commission proposes the addition of paragraph (d) to
Sec. 801.12 related to electric power generation facilities. This new
paragraph memorializes and elevates the Use of Dry Cooling Technology
for Power Generation and Other Facilities, Commission Resolution No.
2015-02 (Dry Cooling Resolution). The Dry Cooling Resolution has been
instrumental in reducing the water consumption of new power plants in
the basin. The Commission recognizes that an increasing number of power
generation facilities, most recently combined cycle natural gas powered
plants, are utilizing dry cooling technology to reduce the
environmental footprint in the basin, and are demonstrating overall
efficiencies in operations that are equivalent to wet cooling
processes. Dry cooling technology significantly reduces the water
demand of such facilities and
[[Page 20149]]
provides increased flexibility in siting facilities in proximity to
fuel sources and electrical transmission lines. Use of dry cooling
technology reduces impacts to aquatic ecosystems through the reduction
of thermal impacts associated with large industrial volume discharges.
The proposal would require consideration of dry cooling technologies to
any new or significantly modified power generation facilities and an
alternatives analysis to continue the consideration of water
conservation technologies in an industry that is the largest
consumptive user of water in the basin.
List of Subjects in 18 CFR Part 801
Administrative practice and procedure, Water resources.
Accordingly, for the reasons set forth in the preamble, the
Susquehanna River Basin Commission proposes to amend 18 CFR part 801 as
follows:
PART 801--GENERAL POLICIES
0
1. The authority citation for part 801 continues to read as follows:
Authority: Secs. 3.1, 3.4, 3.5(1), 15.1 and 15.2, Pub. L. 91-
575 (84 Stat. 1509 et seq.)
0
2. Amend Sec. 801.2 by revising paragraph (b)(9) as follows:
Sec. 801.2 Coordination, cooperation, and intergovernmental
relations.
* * * * *
(b) * * *
(9) Coordinate and cooperate with the appropriate agencies of a
member jurisdiction on implementing actions to address resiliency in
the face of changing climatic conditions and to support the aims of
environmental justice.
0
3. Revise Sec. 801.5 to read as follows:
Sec. 801.5 Comprehensive plan.
(a) The Compact requires that the Commission formulate and adopt a
comprehensive plan for the immediate and long-range development and use
of the water resources of the basin.
(1) The plan will include existing and proposed public and private
programs, projects, and facilities which are required, in the judgment
of the Commission, to meet present and future water resources needs of
the basin. Consideration shall be given to the effect of the plan, or
any part of the plan, on the receiving waters of the Chesapeake Bay.
The Commission shall consult with interested public bodies and public
utilities and fully consider the findings and recommendations of the
signatory parties, their various subdivisions and interested groups.
Prior to adoption of the plan the Commission shall conduct at least one
public hearing in each signatory State.
(2) The plan will reflect consideration of multiple objectives,
including economic growth; sustainable regional development and
environmental resilience; coordinated study and consideration of water
quantity and water quality and the nexus with existing and proposed
land uses; and the promotion of cooperation and collaboration between
all levels of government and non-governmental entities.
(3) The Commission will strive to complete a comprehensive update
of the comprehensive plan every 20 years. If adjustments are needed
during the life span of the plan to address emergent priorities, goals,
or objectives, the comprehensive plan will be revised in accordance
with requirements of the Compact.
(4) Projects requiring Commission review and approval will be
included in the comprehensive plan after formal action is taken at
Commission business meetings. Approved projects will be incorporated
into the comprehensive plan and accessible via the Commission's Water
Application and Approval Viewer or successor viewer applications.
(b) The comprehensive plan shall provide for the immediate and
long-range use, development, conservation, preservation, and management
of the water resources of the basin. The plan will be presented in a
form and order as determined by the Commission and shall include but
not be limited to the following:
(1) Statement of authority, purpose, objectives, and scope.
(2) Identification of priorities, goals and objectives of the
Commission.
(3) Inventory of the basin's water resources and existing
developments, projects and facilities.
(4) Projection of immediate and long range water resources needs of
the basin.
(5) Outline of plan implementation measures.
(6) Procedures for updating and modifying the plan.
(7) Necessary appendices.
0
4. Amend Sec. 801.12 by adding paragraph (d) to read as follows:
Sec. 801.12 Electric power generation.
* * * * *
(d) Project sponsors proposing new or significantly modified power
generation plants in the basin shall consider the use of dry cooling
technologies and submit to the Commission a rigorous alternatives
analysis. This analysis shall include evaluation of the costs,
benefits, trade-offs and drawbacks of various cooling and water
conservation techniques, and a full evaluation of options for providing
effective consumptive use mitigation.
0
5. Add Sec. 801.15 to read as follows:
Sec. 801.15 Commission Procurement Procedures; Protests.
(a) Procedures. The Commission shall maintain a policy entitled
``SRBC Procurement Procedures'' that outlines the details and
procedures related to the purchasing and procurement of goods and
services by the Commission. Any revisions to this policy shall be
consistent with Sec. 15.9 of the Compact and undertaken in accordance
with appropriate public notice and comment consistent with the
requirements of Sec. 808.1.
(b) Right to Protest. A bidder or offeror, a prospective bidder or
offeror or a prospective contractor that is aggrieved in connection
with the solicitation or award of a contract, may protest to the
Commission in writing.
(c) Filing of Protest. A protestant shall file the protest on a
form and in a manner prescribed by the Commission. A protest shall be
filed within ten calendar days after the aggrieved protestant knew or
should have known of the facts giving rise to the protest, except that
in no event may a protest be filed later than ten calendar days after
the date the contract was awarded. The failure to file a timely protest
shall be deemed as a waiver of the right to protest by any bidder or
offeror, prospective bidder or offeror or a prospective contractor.
Untimely filed protests shall be disregarded by the Commission. The
Executive Director or his/her designee shall be the presiding officer
to hear the bid protest. The awardee of the contract, if any, will be
informed by the Commission of any bid protest that may affect the
contract and the awardee may intervene as a party in any protest filed.
(d) Contents of Protest. A protest shall state all the grounds upon
which the protestant asserts the solicitation or award of the contract
was improper. The protestant may submit with the protest any documents
or information it deems relevant to the protest.
(e) Response and Reply. Within 15 calendar days of receipt of a
protest, the purchasing officer may submit to the presiding officer and
the protestant a response to the protest, including any documents or
information deemed relevant to the protest. The protestant may file a
reply to the response within ten calendar days of the response.
(f) Evaluation of Protest. The presiding officer shall review the
protest
[[Page 20150]]
and any response or reply and may request and review such additional
documents or information as they deem relevant to render a decision and
may, at their sole discretion, conduct a hearing consistent with Sec.
808.3. All parties will be provided with a reasonable opportunity to
review and address any additional documents or information deemed
relevant by the presiding officer to render a decision. Additional
documents and information deemed relevant by the presiding officer will
be included in the record.
(g) Findings and Report. Upon completing an evaluation of the
protest, the presiding officer shall prepare a report of their findings
and recommendations based on the record. The report shall be served by
electronic mail or certified mail upon each party to the proceeding.
Any party may file objections to the report. Such objections to the
report shall be filed with the Commission and served on all parties
within 20 calendar days after service of the report. A brief shall be
filed together with the objections. Any replies to the objections and
briefs will be filed and served on all parties within ten calendar days
of service of the objections. Prior to its decision on such objections,
the Commission may, in its sole discretion, grant a request for oral
argument.
(h) Action by the Commission. The Commission will review the
findings and recommendations of the presiding officer and the
objections and render a determination. The Commission's determination
will be in writing and will be served by electronic or certified mail
upon each party to the proceeding.
(i) Appeal. Any final action by the Commission may be appealed to
the appropriate United States District Court within 90 days as set
forth in Sec. 3.10(6) and Federal reservation (o) of the Compact.
(j) Record of Determination. The Commission's record of
determination for review by the court shall consist of the
solicitation; the contract, if any; the administrative record of the
protest before the presiding officer; the report of the presiding
officer, along with any objections and replies filed; transcripts and
exhibits, if any; and the final determination of the Board of
Commissioners.
(k) Stay of Procurement During Pendency of Protest. In the event a
protest is filed timely under this section, the purchasing officer
shall not proceed further with the solicitation or with the award of
the contract unless and until the Executive Director makes a written
determination that the protest is clearly without merit, or that award
of the contract without delay is necessary to protect substantial
interests of the Commission, or until the Commission enters a final
determination under paragraph (h) of this section.
(l) Exclusive Procedure. This section shall be the exclusive
procedure for protesting a solicitation or award of a contract by a
bidder or offeror, a prospective bidder or offeror or a prospective
contractor that is aggrieved in connection with the solicitation or
award of a contract by the Commission.
Dated: March 18, 2024.
Jason E. Oyler,
Secretary to the Commission.
[FR Doc. 2024-06035 Filed 3-20-24; 8:45 am]
BILLING CODE 7040-01-P
