Proposed Amendments to Rules of Practice and Procedure

Assuming that these, my original concerns, are confirmed, even though it's not under the federal Administrative Procedure Act, I would respectfully submit, in my written comment, that it's ultra vires what the Commission proposes to change the regulation to is (a) ultra vires what his authority is under whatever the relevant statute is.

And secondly, I see working in the background some very serious constitutional concerns about doing some of these things that affect people's property without due process. And then I would go on to say people should, if they're sufficiently concerned, which I don't know how many people were on the previous call, maybe they will have to take it to the courts. I've got a class action person, maybe there's something there that would help control costs. Yeah, I'll have to put it in my written comment after I very closely look at what everything says, look at it very closely. Because there's a conflict between what these ladies are saying and my understanding of what your agency says the proposed changes are. Thank you very much for your time.↓

But my more substantive comment is also related to 401.41 in part A that discusses extension by Executive Director. By my reading, and I too like others have found the changes to be confusing, the public is pretty much cut out of the process of extending approvals. The section gives Mr. Tambini authority to extend approvals on projects as long as certain criteria have been met. That include terms like very subjective words, arbitrary terms like $1,000,000 signifying a substantial expenditure.

If the criteria have been met in Mr. Tambini's view, then he can extend the approval. I don't see an opportunity for the public to know that the project is up for consideration or to comment on whether or not the extension should be granted. Something important is missing from the list of criteria. Basically, the criteria say that changes must not have been made to the project, to the project site, or the Commission’s Compact in addition to money spent. But that doesn't really include things that have occurred since the initial approval that are in the real world.

Climate change is the obvious example. Top climate scientists have said that the rapid acceleration and intensification of climate change is something that they didn't anticipate. Would the Commissioners have approved a project that would have climate impacts or be especially vulnerable to climate impacts had they known what we all know now. Changes like that should be taken into account when an extension is considered and it shouldn't be up to one person to consider or even know what all the changes might have occurred that would affect an extension. It's one of the reasons why we have commissions with multiple members. It's also one of the reasons why we have a public participation process.

The first opportunity I see for the public to engage is when Mr. Tambini reports to the Commission the extensions he's approved the draft refers to subpart F, which is actually in a different section and seems to be specific to hearings, where it says that any participant in a hearing can appeal an approval in a federal court, something that isn't an option for many individuals or even small organizations. Any changes to the Commission's practices and procedures should ensure more transparency and more opportunities for the public to engage, not fewer. I encourage you to rethink these proposed rule changes. Thank you.↓

I would like to begin my comment by impressing upon you the need for this proposed rulemaking to still have time and space for the DRBC to provide an interactive public presentation that people can attend and ask questions. There is no small change in the list of items and language changes are important that the public gain a full comprehensive understanding of what these mean. This would then ensure an even more fully informed public comment period that DRBC is sure to only benefit from. It is wrong of the DRBC to ever assume that simply throwing items up on a website would be a suitable alternative to offering an interactive public presentation on matters important like this.

A great example of this is that only when someone reads the redlined Rules of Practice and Procedure, which is only contained as one of many, many links on the website the public has to sift through, do they see that the DRBC has removed all references to the Federal Freedom of Information Act from its rules and setting up a DRBC-centric system. These changes are not made apparent on the changed text that is copied and pasted into the website text of the RPP page on DRBC’s website, only in the redline. While, the DRBC has said they are ruled under the water compact as opposed to the laws of federal or specific state government, the DRBC should not see this as a way to write its own rules that are not consistent with the standard practices many agencies and states all have consistencies in.

This new system leaves many aspects of requests for records unaddressed or in the hands of the Executive Director such as forms, reason for denial, and how costs will be assessed fairly, which includes if a waiver of fees can be requested unlike how other agencies always allow one to make a waiver request. Without a waiver of administrative fees, some members of the public will not be able to afford to get the information they need and that is unfair and discriminatory. This control exerted by the Executive Director in many of these proposed rulemakings is of great concern, including giving the Executive Director what would appear by these rules to be the sole decider of if a disclosure of exempt records is in the public interest, which they may not even be qualified to make such legally important decisions.

The DRBC did not take this rulemaking opportunity to clarify on many of its records requests rules and make it easily understandable for the public, but has left loopholes to drag their feet, force the public to possibly spend exorbitant document fees. And be able to waive the rules in the public space and say too bad, so sad that's just how it goes, with little to no resources for the public to appeal of denial of records or receive fee waivers. It is a keystone in many government agencies that you provide public disclosure of records on requests and DRBC should not take lightly its duty to provide full opportunities for the public to understand.

I implore you to hold an interactive public presentation on these real changes and to extend the comment deadline accordingly, DRN will be submitting written comment as well. Thank you.↓

And second, the narrowing of the DRBC decision-making process to exclude or minimize public input, public knowledge of DRBC decisions, and decision-making process actually will weaken the Commission's ability to protect the resources of the Basin. Protecting these resources is why the DRBC exists.

A unitary executive, top down, behind the scenes, hidden process, will make the DRBC less effective, less knowledgeable of conditions it needs to know about. And, by disengaging the public coupled with changing the freedom of information law rules, so DRBC's hidden activities are not discoverable, these crucial decisions are also hidden. Decisions that directly affect the quality of our environment, our drinking water, our air quality, the diversity and health of the Delaware River, its species, habitats, ecosystems, tributaries, and communities throughout the entire watershed.

We cannot effectively take part and influence outcomes if the decision-making process is not open and interactive with all important decisions. And the underlying information about them fully disclosed and available for review and comment. We also want the DRBC Commissioners to be hands-on involved and engaged with the decisions that are made, as these representatives of our elected government are accessible to us as members of the public and they are required to respect our rights and protect the environment for the public good.

That is not what this rulemaking proposes to do. In fact, it does the opposite in almost all of its proposed sections. Please reconsider these rules changes and don't break what is not broken. A little more on that first point. The DRBC originated out of INCODel, the Interstate Commission on the Delaware River, a voluntary arrangement among the Basin states’ Departments of Health, yes, health, that sought to promote health of its residents, human and otherwise, solve existing environmental problems, and prevent additional hurtful contamination, pollution, or destruction of the basin. DRBC must not set up a situation where ease of corporate decision-making is more important than doing the job it was assigned to do in its formation and has been doing a pretty good job along the way to today. The Delaware is much cleaner than when the DRBC was formed. Please reconsider these rules changes and don't break what is not broken and we will be submitting additional written comments. Thank you. B. Arrindel, DCS.↓

That brings me back to support for what Tracy Carluccio and our other speaker said, that transparency is extremely important, and I think this will only become more so in the coming years as the scarcity of water increases and there may be more projects pushed in that are, that need really clear public involvement before approval. So I will submit some written comments after I've thought about this more.

You said you couldn't answer questions now, so I don't expect you to define what a key permit is and how that should avoid, why that should be automatically extended. I think extensions should happen but every project should be evaluated because the times are changing and the needs may change. Thank you very much for giving me some time today to talk. That's all. ↓

I mean, we just had a, you know, close to a 30 minute delay here. Technology is also sometimes messy. It doesn't work exactly like we want it to. And my heart goes out to Kristen and the DRBC support staff and working to resolve that computer error with YouTube, but it is clearly best to have more access at DRBC meetings, even it requires a little waiting. And that's exactly like democracy. It's a little messy. It's not always efficient, but it's worth it to have more access and not have decisions that are made behind closed doors without knowledge, not only by the public but also the Commissioners. And I think it's critical.

We're looking at these rule changes. To figure out are these truly making decisions more transparent? Are they making it more inclusive for the public and DRBC Commissioners than the ones we currently have? I think the answer clearly is not. And obviously where you sit sometimes determines where you stand on decisions like this. We are in a moment of unprecedented levels of distrust for our government, especially our federal government. We're on the cusp of a government shutdown. Now is not the time in the name of quote unquote efficiencies to move towards a process at DRBC, that work to take items out of the public view and review by the Commission. As we like to say, sunshine is always the best disinfectant. It's not necessarily the most efficient process, but it is very important and I wanted to, ask DRBC to re-examine the rules, to ultimately withdraw them and ensure that you're allowing the same amount of public access for the public as you currently have. Because I don't think these rules meet that standard.

And I want to just emphasize just a couple items here in the proposal. One is that when we talk about “material” and the definition of “material change” and “materially,” this is used throughout the proposed rulemaking, yet there's no clear definition available. There's only a bureaucratic explanation. The terminology is not easily understandable and it clouds objectivity. And this ultimately I think is the danger is that we do not want to have spot zoning. We don't want to have the ability for the process to, you know, be interpreted by one individual. We should have clear definitions and then also a reminder that we should not be changing rules that make it harder for the public and the Commission itself and Commissioners to be involved in the process. Let's not roll the clock back here. We ask DRBC to re-examine this process and withdraw this proposal. Thank you very much.↓

On September 8, 2022, the DRBC Commissioners voted to affirm an approval given covertly the prior June by Executive Director Steve Tambini to extend the permit for the popularly opposed Gibbstown liquefied natural gas export terminal on the Delaware River. DRN, Delaware Riverkeeper Network, uncovered that staff approval through a Freedom of Information Act request. Without the FOIA, the public would have been none the wiser of the permit extension because DRBC believes their regulations don’t require public notice, an opportunity for public comment, nor even a vote by the Commissioners on such permit extensions.

The Commissioners are the governors of the four states and also President Biden represented by the Army Corps of Engineers. They are supposed to be where the buck stops at DRBC, not administrative staff. The revelation of the behind the scenes approval shocked the public and shook the public trust in DRBC's decision-making. It set off protest demanding their approval be rescinded, that there be full public disclosure that a public hearing be held and that any final determination be voted on by the Commissioners. But the only subsequent action taken was the Commissioner vote, which did not allow for any public comment or participation. They simply rubber stamped the Executive Director's secret approval.

Now we're being asked to allow DRBC to carve in stone this bad process with a couple little changes. And this empowers the Executive Director to decide for permit, like the Gibbstown LNG extension, should be extended or and as a matter of fact it's even worse it can be extended for five years rather than three. There would be no public participation, not even any public notification, until after the ED’s decision, when it would be perfunctorily announced at the next DRBC public meeting. This kind of back-room decision-making should be overthrown, not memorialized into regulations.

There are many other provisions in these proposed rules that we oppose. DRN will be submitting written comment and speaking at tonight's hearing as well. Overall, far too much authority is being invested in the Executive Director to act unilaterally and behind the public's back. We are being removed from participating in these important decisions that affect us all so directly. And the Commissioners are removed from the action as well, not even voting on some of the most critical permit extensions. The Commissioners are supposed to represent us as elected officials who are responsible for putting the public good and the environment first, not special interests. They should be the final arbiters. For the sake of government transparency and robust opportunities for public participation, we oppose all changes that shut the public out, that restrict public access to information, and remove the Commissioners from project and policy decisions. Thank you for the opportunity to speak here today.↓