[Federal Register Volume 71, Number 130 (Friday, July 7, 2006)]
[Proposed Rules]
[Pages 38692-38707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5632]



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Part II





Susquehanna River Basin Commission





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18 CFR Parts 803, 804, and 805



Review and Approval of Projects; Special Regulations and Standards; 
Hearings/Enforcement Actions; Proposed Rule

  Federal Register / Vol. 71, No. 130 / Friday, July 7, 2006 / Proposed 
Rules  

[[Page 38692]]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 803, 804 and 805


Review and Approval of Projects; Special Regulations and 
Standards; Hearings/Enforcement Actions

AGENCY: Susquehanna River Basin Commission (SRBC).

ACTION: Proposed rule.

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SUMMARY: This document contains extensive amendments to project 
regulations concerning standards and hearings/enforcement actions. 
Because revisions are too numerous to show within the original 
regulations, proposed parts 803, 804 and 805 are being published here 
in their entirety, with an explanation of changes in the SUPPLEMENTARY 
INFORMATION section below. These regulations provide the procedural and 
substantive rules for SRBC review and approval of water resources 
projects and the procedures governing hearings and enforcement actions. 
These amendments include additional due process safeguards, add new 
standards for projects, improve organizational structure, incorporate 
recently adopted policies and clarify language.

DATES: Comments on these proposed amendments may be submitted to the 
SRBC on or before September 1, 2006. The Commission has scheduled 
public hearings on the proposed rules as follows:
    a. August 8, 2006, 6:30 p.m.--Owego Treadway Inn, Owego, NY.
    b. August 10, 2006, 8:30 a.m.--PA Bureau of Topographic and 
Geologic Survey, Middletown, PA.
    c. August 10, 2006, 6:30 p.m.--Kings College, Snyder Room, Wilkes-
Barre, PA.
    Those wishing to testify are asked to notify the Commission in 
advance if possible at the regular or electronic addresses given below.

ADDRESSES: Comments may be mailed to: Mr. Richard A. Cairo, Susquehanna 
River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102-
2391; [email protected].

FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel/ 
Secretary, 717-238-0423; Fax: 717-238-2436; e-mail: [email protected]. 
Also, for further information on the proposed rulemaking action, visit 
the Commission's Web site at www.srbc.net.

SUPPLEMENTARY INFORMATION:

Background

    The SRBC adopted a final rule on May 11, 1995, published at 60 FR 
31391, June 15, 1995 establishing: (1) The scope and procedures for 
review and approval of projects under Section 3.10 of the Susquehanna 
River Basin Compact, Pub. L. 91-575; 83 Stat. 1509 et seq. (the 
compact); (2) special standards under Section 3.4 (2) of the compact 
governing water withdrawals and consumptive use of water; and (3) 
procedures for hearings and enforcement actions.

Need for Amendments

    After 11 years of experience with these regulations, the SRBC has 
uncovered many provisions that require strengthening, reorganization 
and clarification. In addition, the Commission has since adopted 
several important policies relating to the management of the basin's 
water resources and the enforcement of these regulations. As a matter 
of sound legal practice, these policies need to be incorporated into 
the language of the regulations.

Highlights of Major Amendments

18 CFR PART 803--REVIEW AND APPROVAL OF PROJECTS

Subpart A--General Provisions

    1. Section 803.3 Definitions.--A definition for ``change in 
ownership'' has been included because of modifications proposed in 
Sec.  803.4, related to certain grandfathered uses or withdrawals.
    2. Section 803.4 Projects requiring review and approval.--This 
section reorganizes and expands what projects require review and 
approval and whether any exemptions apply. In part, this section 
consolidates provisions currently contained in various sections of the 
existing regulations. A significant addition is that to the extent that 
a consumptive water use project involves a withdrawal from ground or 
surface water, the withdrawal will also be subject to review.
    Additionally, the current 100,000 gallons per day (gpd) threshold 
for withdrawals has been expanded to include any combination of ground 
or surface water withdrawals exceeding that threshold. This section 
also will end the recognition of ``pre-compact'' or ``grandfathered'' 
consumptive uses or withdrawals upon a change of ownership, and will 
end the practice under existing Sec.  803.31 of allowing the transfer 
of project approvals when a change of ownership occurs.
    Exceptions are contained in the definition of the term ``change of 
ownership'' for the transfer of projects involving corporate 
reorganizations, transfers to certain family members, and transfers of 
agricultural land for so long as it continues to be used for 
agricultural purposes.
    (The existing project review and approval requirements are 
currently suspended for projects involving agricultural water use and 
the Commission intends to continue the suspension as its member 
jurisdictions actively pursue alternative consumptive use compliance 
options for agricultural operations in cooperation with the 
Commission.)

Subpart B--Application Procedure

    3. Section 803.12 Constant-rate aquifer testing.--Requirements 
regarding constant-rate aquifer tests are set forth in a new section 
and expanded to incorporate a time limit for testing to occur.
    4. Section 803.14 Contents of application.--This section is 
reorganized to include a comprehensive list of information that a 
project sponsor must provide when making application to the Commission.
    5. Section 803.16 Completeness of application.--This section 
replaces Sec.  803.26 and sets out a procedure for dealing with 
incomplete project applications pursuant to existing Commission 
practice.

Subpart C--Standards for Review and Approval

    6. Section 803.21 General standards.--This section covers the 
criteria for approval of a project by the Commission. Also, in 
accordance with current policy, provisions are added to allow the 
Commission to suspend the processing of a project application if a 
signatory party or a political subdivision of a signatory party 
exercising lawful authority over the project has disapproved the 
project, and to suspend an approval itself if a project sponsor fails 
to maintain such approvals.
    7. Section 803.22 Standards for consumptive uses of water.--This 
section replaces the current Sec.  803.42. Several changes are made, 
including the removal of a specific low flow criterion (Q7-10) and 
inclusion of an approval by rule provision for certain consumptive use 
projects that obtain their water from public water supplies. These 
types of projects would no longer have to be individually approved by 
the Commission.
    8. Section 803.23 Standards for water withdrawals.--This section 
consolidates existing Sec. Sec.  803.43 (Standards for ground-water 
withdrawals) and 803.44 (Standards for surface water withdrawals) into 
a single section covering standards for all withdrawals, and clarifies 
the

[[Page 38693]]

conditions or limitations that can be imposed on withdrawals to avoid 
adverse impacts on the environment or other users. Application 
standards for constant-rate aquifer tests for proposed groundwater 
withdrawals have been moved to Sec.  803.12. Monitoring requirements 
are moved to new Sec.  803.30 (Monitoring), where details on measuring 
and recording, reporting, and monitoring methodology are set forth.
    9. Section 803.24 Standards for diversions.--This section sets 
standards for the approval of diversions by incorporating a Commission 
policy applying to out-of-basin diversions of water and also sets 
standards for in-basin diversions. As permitted under the terms of 
section 3.10 of the compact, this new section exempts ``out-of-basin'' 
diversions up to 20,000 gpd. In-basin diversions of any quantity 
continue to be subject to review and approval.
    10. Section 803.25 Water conservation standards.--The water 
conservation standards currently set forth in part 804, subpart B, are 
moved to Sec.  803.25. While no substantive changes are being made now 
in these proposed revisions, the Commission considers water 
conservation to be a vital component of water resources management and 
will revisit these standards in the near future in close coordination 
with the member jurisdictions.

Subpart D--Terms and Conditions of Approval

    11. Section 803.30 Monitoring.--This section consolidates existing 
provisions and Commission practice related to monitoring, removes 
triennial water quality monitoring requirements, sets a daily quantity 
measurement standard unless otherwise set by the Commission, certifies 
the accuracy of measurement devices every 5 years, sets quantity 
reporting as the requirement unless otherwise specified, and special 
reporting of violations and loss of measurement capabilities.
    12. Section 803.31 Duration of approvals and renewals.--This 
section would be a modification of the existing Sec.  803.30. Approval 
durations are reduced to a general term of 15 years instead of 25 
years, though exceptions for cause are provided. Other changes relate 
to the expiration and extension of approvals for uninitiated uses of 
water, the abandonment or discontinuance of a water use, and the 
renewal of expiring approvals.
    13. Section 803.32 Reopening/modification.--The application process 
for reopening has been simplified for interested parties. Other changes 
address certain actions now currently imposed as docket conditions, 
such as:
    a. Modify or revoke docket approvals for failure to comply with 
docket conditions, and failure to obtain or maintain approvals from 
other federal, state, or local agencies;
    b. Require a project sponsor to provide a temporary source of water 
if interference occurs; and
    c. Reopen any approval upon its own motion to make corrective 
modifications.
    14. Section 803.34 Emergencies.--This section expands the current 
Sec.  803.27, dealing with the issuance of emergency certificates by 
the Executive Director. It incorporates the details of existing 
Commission policy and details the procedure for obtaining an emergency 
certificate to protect the public health, safety, and welfare, or to 
avoid substantial and irreparable injury.
    15. Section 803.35 Fees.--This section makes it clear that project 
sponsors have an affirmative duty under the Commission's regulations to 
pay such fees as may be established by the Commission.

18 CFR PART 804--WATER WITHDRAWAL REGISTRATION

    16. Section 804.2 Time limits.--The only substantive change in this 
part is the addition of language clarifying that compliance with a 
registration or reporting requirement, or both, of a member 
jurisdiction that is substantially equivalent to the Commission 
registration requirement shall be considered in compliance with the 
Commission requirement.

18 CFR PART 805--HEARINGS/ENFORCEMENT ACTIONS

Subpart A--Conduct of Hearings

    17. Section 805.1(a) Public hearings.--This section remains largely 
intact, with revisions to clarify the rules governing standard public 
hearings before the Commission on such matters as rulemaking, 
comprehensive plan additions, and project review.
    18. Section 805.2 Administrative appeals.--This is a new section 
providing an administrative appeal procedure for persons aggrieved by 
any action or decision of the Commission or the Executive Director. 
Hearings under this section provide another administrative appeal 
option prior to an appeal to the United States District Court. Also 
included are provisions for stays and intervention of parties.
    19. Section 805.3 Hearing on administrative appeal.--This section 
adds detailed procedures for hearings to be held on administrative 
appeals, currently contained in section 805.2 for adjudicatory 
hearings. Included are the powers of the hearing officer, provisions 
for recording the hearing proceedings, provisions for staff and other 
expert testimony, provisions for the inclusion of written testimony, 
rules for assessing costs, and an in forma pauperis procedure.

Subpart B--Compliance and Enforcement

    20. Section 805.11 Duty to comply.--New section affirming the 
existing duty of any person to comply with any provision of the compact 
or rules, regulations, orders, approvals, and conditions of approval.
    21. Section 805.12 Investigative powers.--This new section sets 
forth the powers of agents or employees of the Commission to inspect or 
investigate facilities to determine compliance with any provisions of 
the compact or the regulations of the Commission. These requirements 
are currently set forth as conditions in docket approvals. Owners and 
operators of facilities are also directed to provide true and accurate 
information as requested by the Commission and are subject to the 
``falsification to authorities'' statutes of the member jurisdictions.
    22. Section 805.13 Notice of Violation.--This section provides a 
procedure for the issuance of a Notice of Violation to an alleged 
violator of any rule, regulation, order, approval, or docket condition, 
consistent with current Commission practice.
    23. Section 805.14 Orders.--This is a section explicitly stating 
the authority of both the Executive Director and the Commission to 
issue various orders, including requiring a project to cease and desist 
any action or activity to prevent harm and enforce the provisions of 
the compact, regulations, docket conditions, or any rules or 
regulations of the Commission.
    24. Section 805.15 Show cause proceeding.--This section establishes 
the basic procedural device for enforcement of Commission regulations 
and docket conditions through the imposition of penalties or other 
sanctions on violators pursuant to section 15.17 of the compact. To 
insure the integrity of this process, provisions are included to 
separate adjudicatory and prosecutorial functions of the Commission. 
The provisions of this section also preserve the opportunity for the 
alleged violator to present testimony for consideration prior to action 
by the commissioners.
    25. Section 805.18 Settlement by agreement.--Paragraph (b) 
incorporates the standard language of all Commission

[[Page 38694]]

settlement agreements that the Commission may reinstitute a civil 
penalty action if the violator fails to carry out any of the terms of 
the settlement agreement.

List of Subjects in 18 CFR Parts 803, 804, and 805

    Administrative practice and procedure, Water resources.

    Accordingly for the reasons set forth in the preamble, 18 CFR parts 
803, 804, and 805 are proposed to be revised as follows:

PART 803--REVIEW AND APPROVAL OF PROJECTS

Subpart A--General Provisions
Sec.
803.1 Scope.
803.2 Purposes.
803.3 Definitions.
803.4 Projects requiring review and approval.
803.5 Projects that may require review and approval.
803.6 Transferability of Project Approvals.
803.7 Concurrent project review by member jurisdictions.
803.8 Waiver/modification.
Subpart B--Application Procedure
803.10 Purpose of this subpart.
803.11 Preliminary consultations.
803.12 Constant-rate aquifer testing.
803.13 Submission of application.
803.14 Contents of application.
803.15 Notice of application.
803.16 Completeness of application.
Subpart C--Standards for Review and Approval
803.20 Purpose of this subpart.
803.21 General standards.
803.22 Standards for consumptive uses of water.
803.23 Standards for water withdrawals.
803.24 Standards for diversions.
803.25 Water conservation standards.
Subpart D--Terms and Conditions of Approval
803.30 Monitoring.
803.31 Duration of approvals and renewals.
803.32 Reopening/modification.
803.33 Interest on fees.
803.34 Emergencies.
803.35 Fees.

    Authority: Secs. 3.4, 3.5 (5), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.

Subpart A--General Provisions


Sec.  803.1  Scope.

    (a) This part establishes the scope and procedures for review and 
approval of projects under Section 3.10 of the Susquehanna River Basin 
Compact, Public Law 91-575, 84 Stat. 1509 et seq., (the compact) and 
establishes special standards under Section 3.4(2) of the compact 
governing water withdrawals and the consumptive use of water. The 
special standards established pursuant to Section 3.4(2) shall be 
applicable to all water withdrawals and consumptive uses in accordance 
with the terms of those standards, irrespective of whether such 
withdrawals and uses are also subject to project review under Section 
3.10. This part, and every other part of 18 CFR Chapter VIII, shall 
also be incorporated into and made a part of the comprehensive plan.
    (b) When projects subject to Commission review and approval are 
sponsored by governmental authorities, the Commission shall submit 
recommendations and findings to the sponsoring agency, which shall be 
included in any report submitted by such agency to its respective 
legislative body or to any committee thereof in connection with any 
request for authorization or appropriation therefor. The Commission 
review will ascertain the project's compatibility with the objectives, 
goals, guidelines and criteria set forth in the comprehensive plan. If 
determined compatible, the said project will also be incorporated into 
the comprehensive plan, if so required by the compact. For the purposes 
of avoiding conflicts of jurisdiction and of giving full effect to the 
Commission as a regional agency of the member jurisdictions, no 
expenditure or commitment shall be made by any governmental authority 
for or on account of the construction, acquisition or operation of any 
project or facility unless it first has been included by the Commission 
in the comprehensive plan.
    (c) If any portion of this part, or any other part of 18 CFR 
Chapter VIII, shall, for any reason, be declared invalid by a court of 
competent jurisdiction, all remaining provisions shall remain in full 
force and effect.
    (d) Except as otherwise stated in this part, this part shall be 
effective on ------------------------.
    (e) When any period of time is referred to in this part, such 
period in all cases shall be so computed as to exclude the first and 
include the last day of such period. Whenever the last day of any such 
period shall fall on Saturday or Sunday, or on any day made a legal 
holiday by the law of the United States, such day shall be omitted from 
the computation.
    (f) Any forms or documents referenced in this part may be obtained 
from the Commission at 1721 North Front Street, Harrisburg, PA 17102-
2391, or from the Commission's Web site at http://www.srbc.net.


Sec.  803.2  Purposes.

    (a) The general purposes of this part are to advance the purposes 
of the compact and include, but are not limited to:
    (1) The promotion of interstate comity;
    (2) The conservation, utilization, development, management and 
control of water resources under comprehensive, multiple purpose 
planning; and
    (3) The direction, supervision and coordination of water resources 
efforts and programs of federal, state and local governments and of 
private enterprise.
    (b) In addition, Sec. Sec.  803.22, 803.23 and 803.24 of this part 
contain the following specific purposes: Protection of public health, 
safety and welfare; stream quality control; economic development; 
protection of fisheries and aquatic habitat; recreation; dilution and 
abatement of pollution; the regulation of flows and supplies of ground 
and surface waters; the avoidance of conflicts among water users; the 
prevention of undue salinity; and protection of the Chesapeake Bay.
    (c) The objective of all interpretation and construction of this 
part and all subsequent parts is to ascertain and effectuate the 
purposes and the intention of the Commission set out in this section. 
These regulations shall not be construed in such a way as to limit the 
authority of the Commission, the enforcement actions it may take, or 
the remedies it may prescribe.


Sec.  803.3  Definitions.

    For purposes of parts 803, 804 and 805, unless the context 
indicates otherwise, the words listed in this section are defined as 
follows:
    Agricultural water use. A water use associated primarily with the 
raising of food, fiber or forage crops, trees, flowers, shrubs, turf, 
livestock and poultry. The term shall include aquaculture.
    Application. A written request for action by the Commission 
including without limitation thereto a letter, referral by any agency 
of a member jurisdiction, or an official form prescribed by the 
Commission.
    Basin. The area of drainage of the Susquehanna River and its 
tributaries into the Chesapeake Bay to the southern edge of the 
Pennsylvania Railroad bridge between Havre de Grace and Perryville, 
Maryland.
    Change of Ownership. A change in ownership shall mean any transfer 
by sale or conveyance of the real or personal property comprising a 
project. A change of ownership shall not include:

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    (1) A corporate reorganization of the following types:
    (i) Where 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 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.
    (ii) Where such transfer is merely a result of a change of the 
name, identity, internal corporate structure or place of organization 
and does not affect ownership and/or control.
    (2) Transfer of a project to the transferor's spouse or one or more 
lineal descendents, or any spouse of such lineal descendents, or to a 
corporation owned or controlled by the transferor, or the transferor's 
spouse or lineal descendents, or any spouse of such lineal descendents, 
for so long as the combined ownership interest of the transferor, the 
transferor's spouse and/or the transferor's lineal descendent(s) and 
their spouses, continues to be 51 percent or greater.
    (3) Transfer of land used primarily for the raising of food, fiber 
or forage crops, trees, flowers, shrubs, turf, livestock, poultry or 
aquaculture, for so long as such agricultural use and its associated 
agricultural water use continues.
    Commission.  The Susquehanna River Basin Commission, as established 
in Article 2 of the compact, including its commissioners, officers, 
employees, or duly appointed agents or representatives.
    Commissioner. Member or Alternate Member of the Susquehanna River 
Basin Commission as prescribed by Article 2 of the compact.
    Compact. The Susquehanna River Basin Compact, Pub. L. 91-575; 84 
Stat. 1509 et seq.
    Comprehensive plan. The comprehensive plan prepared and adopted by 
the Commission pursuant to Articles 3 and 14 of the compact.
    Consumptive use. The loss of water transferred through a manmade 
conveyance system or any integral part thereof (including such water 
that is purveyed through a public water supply or wastewater system), 
due to transpiration by vegetation, incorporation into products during 
their manufacture, evaporation, injection of water or wastewater into a 
subsurface formation from which it would not reasonably be available 
for future use in the basin, diversion from the basin, or any other 
process by which the water is not returned to the waters of the basin 
undiminished in quantity.
    Diversion. The transfer of water into or out of the basin.
    Executive Director. The chief executive officer of the Commission 
appointed pursuant to Article 15, Section 15.5, of the compact.
    Facility. Any real or personal property, within or without the 
basin, and improvements thereof or thereon, and any and all rights of 
way, water, water rights, plants, structures, machinery, and equipment 
acquired, constructed, operated, or maintained for the beneficial use 
of water resources or related land uses or otherwise including, without 
limiting the generality of the foregoing, any and all things and 
appurtenances necessary, useful, or convenient for the control, 
collection, storage, withdrawal, diversion, release, treatment, 
transmission, sale, or exchange of water; or for navigation thereon, or 
the development and use of hydroelectric energy and power, and public 
recreational facilities; of the propagation of fish and wildlife; or to 
conserve and protect the water resources of the basin or any existing 
or future water supply source, or to facilitate any other uses of any 
of them.
    Governmental authority. A federal or state government, or any 
political subdivision, public corporation, public authority, special 
purpose district, or agency thereof.
    Groundwater. Water beneath the surface of the ground within a zone 
of saturation, whether or not flowing through known and definite 
channels or percolating through underground geologic formations, and 
regardless of whether the result of natural or artificial recharge. The 
term includes water contained in quarries, pits and underground mines 
having no significant surface water inflow, aquifers, underground water 
courses and other bodies of water below the surface of the earth. The 
term also includes a spring in which the water level is sufficiently 
lowered by pumping to eliminate the surface flow.
    Member jurisdiction. The signatory parties as defined in the 
compact, comprised of the States of Maryland and New York, the 
Commonwealth of Pennsylvania, and the United States of America.
    Member state. The States of Maryland and New York, and the 
Commonwealth of Pennsylvania.
    Person. An individual, corporation, partnership, unincorporated 
association, and the like and shall have no gender and the singular 
shall include the plural. The term shall include a governmental 
authority and any other entity which is recognized by law as the 
subject of rights and obligations.
    Pre-compact consumptive use. The maximum average daily quantity or 
volume of water consumptively used over any consecutive 30-day period 
prior to January 23, 1971.
    Project. Any work, service, activity, or facility undertaken which 
is separately planned, financed or identified by the Commission, or any 
separate facility undertaken or to be undertaken by the Commission or 
otherwise within a specified area, for the conservation, utilization, 
control, development, or management of water resources which can be 
established and utilized independently, or as an addition to an 
existing facility, and can be considered as a separate entity for 
purposes of evaluation.
    Project sponsor. Any person who owns, operates or proposes to 
undertake a project. The singular shall include the plural.
    Public water supply. A system, including facilities for collection, 
treatment, storage and distribution, that provides water to the public 
for human consumption, that:
    (1) Serves at least 15 service connections used by year-round 
residents of the area served by the system; or
    (2) Regularly serves at least 25 year-round residents.
    Surface water. Water on the surface of the earth, including water 
in a perennial or intermittent watercourse, lake, reservoir, pond, 
spring, wetland, estuary, swamp or marsh, or diffused surface water, 
whether such body of water is natural or artificial.
    Water or waters of the basin. Groundwater or surface water, or 
both, within the basin either before or after withdrawal.
    Water resources. Includes all waters and related natural resources 
within the basin.
    Withdrawal. A taking or removal of water from any source within the 
basin.


Sec.  803.4  Projects requiring review and approval.

    Except for activities relating to site evaluation or as otherwise 
allowed under Sec.  803.34, no person shall undertake any of the 
following projects without prior review and approval by the Commission. 
The project sponsor shall submit an application in accordance with 
subpart B and shall be subject to the applicable standards in subpart 
C.
    (a) Consumptive use of water. The consumptive water use projects 
described below shall require an application to be submitted in

[[Page 38696]]

accordance with Sec.  803.12, and shall be subject to the standards set 
forth in Sec.  803.22, and, to the extent that it involves a withdrawal 
from groundwater or surface water, shall also be subject to the 
standards set forth in Sec.  803.23. Except to the extent that they 
involve the diversion of the waters of the basin, public water supplies 
shall be exempt from the requirements of this section regarding 
consumptive use; provided, however, that nothing in this section shall 
be construed to exempt individual consumptive users connected to any 
such public water supply from the requirements of this section.
    (1) Except for projects previously approved by the Commission for 
consumptive use and projects that existed prior to January 23, 1971, 
any project involving a consumptive water use of an average of 20,000 
gallons per day (gpd) or more in any consecutive 30-day period.
    (2) With respect to projects previously approved by the Commission 
for consumptive use, any project that will involve an increase in a 
consumptive use above that amount which was previously approved.
    (3) Any project that will involve an increase in a consumptive use 
that existed prior to January 23, 1971, by an average of 20,000 gpd or 
more in any consecutive 30-day period.
    (4) Any project that involves a consumptive use that will adversely 
affect the purposes outlined in Sec.  803.2 of this part.
    (5) Any project involving a consumptive use of an average of 20,000 
gpd or more in any 30-day period, and undergoing a change of ownership.
    (b) Withdrawals. The projects described below shall require an 
application to be submitted in accordance with Sec.  803.12, and shall 
be subject to the standards set forth in Sec.  803.23. Hydroelectric 
projects, except to the extent that such projects involve a withdrawal, 
shall be exempt from the requirements of this section regarding 
withdrawals; provided, however, that nothing in this paragraph shall be 
construed as exempting hydroelectric projects from review and approval 
under any other category of project requiring review and approval as 
set forth in this section, Sec.  803.23, or 18 CFR part 801.
    (1) Except for projects previously approved by the Commission and 
projects existing prior to the dates specified in paragraph (4) below, 
any project withdrawing a consecutive 30-day average of 100,000 gpd or 
more from a groundwater or surface water source, or a combination of 
such sources.
    (2) With respect to projects previously approved by the Commission, 
any project that increases a withdrawal above that amount which was 
previously approved and any project that will add a source or increase 
withdrawals from an existing source which did not require approval 
prior to ------------------------.
    (3) Any project which involves a withdrawal from a groundwater or 
surface water source and which is subject to the requirements of 
paragraph (a) of this section regarding consumptive use.
    (4) With respect to groundwater projects in existence prior to July 
13, 1978, and surface water projects in existence prior to November 11, 
1995, any project that will increase its withdrawal from any source or 
combination of sources, by a consecutive 30-day average of 100,000 gpd 
or more, above that maximum consecutive 30-day amount which the project 
was withdrawing prior to the said applicable date.
    (5) Any project involving a withdrawal of a consecutive 30-day 
average of 100,000 gpd or more, from either groundwater or surface 
water sources, or in combination from both, and undergoing a change of 
ownership.
    (c) Diversions. The projects described below shall require an 
application to be submitted in accordance with Sec.  803.12, and shall 
be subject to the standards set forth in Sec.  803.24. The project 
sponsors of out-of-basin diversions shall also comply with all 
applicable requirements of this part relating to consumptive uses and 
withdrawals. This requirement shall apply to diversions initiated on or 
after January 23, 1971.
    (1) Any project involving the diversion of water into the basin and 
any project involving a diversion of an average of 20,000 gallons of 
water per day or more in any consecutive 30-day period out of the 
basin.
    (2) With respect to diversions previously approved by the 
Commission, any project that will increase a diversion above that 
amount which was previously approved.
    (3) Any project involving the diversion of water into the basin 
that existed prior to January 23, 1971, that will increase the 
diversion by any amount, and any project involving the diversion of 
water out of the basin that will increase the diversion an average of 
20,000 gpd or more in any consecutive 30-day period.
    (4) Any project involving the diversion of water into the basin and 
any project involving a diversion of an average of 20,000 gallons of 
water per day or more in any consecutive 30-day period out of the 
basin, and undergoing a change of ownership.
    (d) Any project on or crossing the boundary between two member 
states.
    (e) Any project in a member state having a significant effect on 
water resources in another member state.
    (f) Any project which has been or is required to be included by the 
Commission in its comprehensive plan, or will have a significant effect 
upon the comprehensive plan.
    (g) Any other project so determined by the commissioners or 
Executive Director pursuant to Sec.  803.5 or 18 CFR part 801. Such 
project sponsors shall be notified in writing by the Executive 
Director.


Sec.  803.5  Projects that may require review and approval.

    (a) The following projects, if not otherwise requiring review and 
approval under Sec.  803.4, may be subject to Commission review and 
approval as determined by the Commission or the Executive Director:
    (1) Projects that may affect interstate water quality.
    (2) Projects within a member state that have the potential to 
affect waters within another member state. This includes, but is not 
limited to, projects which have the potential to alter the physical, 
biological, chemical or hydrological characteristics of water resources 
of interstate streams designated by the Commission under separate 
resolution.
    (3) Projects that may have a significant effect upon the 
comprehensive plan.
    (4) Projects not included in paragraphs (a)(1) through (a)(3) of 
this section, but which could have an adverse, adverse cumulative, or 
interstate effect on the water resources of the basin, provided that 
the project sponsor is notified in writing by the Executive Director.
    (b) Determinations by the Executive Director may be appealed to the 
commissioners by filing an appeal with the Commission within 30 days 
after receipt of notice of such determination as set forth in Sec.  
805.2.


Sec.  803.6  Transferability of Project Approvals.

    (a) Existing Commission approvals of projects undergoing a change 
in ownership as defined in Sec.  803.3 of this part may not be 
transferred to the new project sponsor(s). Such project sponsor(s) 
shall submit an application for approval as required by Sec.  
803.4(a)(5), (b)(5) or (c)(4) of this part, and may

[[Page 38697]]

operate such project under the terms and conditions of the existing 
approval, pending action by the Commission on the application, provided 
such project sponsor satisfies the requirements of Sec.  803.13(b) of 
this part.
    (b) Existing Commission approvals of projects excluded from the 
definition of change of ownership in Sec.  803.3 of this part may be 
transferred to the new project sponsor(s), provided such project 
sponsor(s) notify the Commission in advance of the transfer of such 
project approval, which notice shall be on a form and in a manner 
prescribed by the Commission and under which the project sponsor(s) 
certify their or its intention to comply with all terms and conditions 
of the transferred approval and assume all other associated 
obligations.


Sec.  803.7  Concurrent project review by member jurisdictions.

    (a) The Commission recognizes that agencies of the member 
jurisdictions will exercise their review authority and evaluate many 
proposed projects in the basin. The Commission will adopt procedures to 
assure compatibility between jurisdictional review and Commission 
review.
    (b) To avoid duplication of work and to cooperate with other 
government agencies, the Commission may develop agreements of 
understanding, in accordance with the procedures outlined in this part, 
with appropriate agencies of the member jurisdictions regarding joint 
review of projects. These agreements may provide for joint efforts by 
staff, delegation of authority by an agency or the Commission, or any 
other matter to support cooperative review activities. Permits issued 
by a member jurisdiction agency shall be considered Commission approved 
if issued pursuant to an agreement of understanding with the Commission 
specifically providing therefor.


Sec.  803.8  Waiver/modification.

    The Commission may, in its discretion, waive or modify any of the 
requirements of this or any other part of its regulations if the 
essential purposes set forth in Sec.  803.2 continue to be served.

Subpart B--Application Procedure


Sec.  803.10  Purpose of this subpart.

    The purpose of this subpart is to set forth procedures governing 
applications required by Sec. Sec.  803.4, 803.5, and 18 CFR part 801.


Sec.  803.11  Preliminary consultations.

    (a) Any project sponsor of a project that is or may be subject to 
the Commission's jurisdiction is encouraged, prior to making 
application for Commission review, to request a preliminary 
consultation with the Commission staff for an informal discussion of 
preliminary plans for the proposed project. To facilitate preliminary 
consultations, it is suggested that the project sponsor provide a 
general description of the proposed project, a map showing its location 
and, to the extent available, data concerning dimensions of any 
proposed structures, anticipated water needs, and the environmental 
impacts.
    (b) Preliminary consultation shall be optional for the project 
sponsor (except with respect to aquifer test plans, see Sec.  803.12) 
and shall not relieve the sponsor from complying with the requirements 
of the compact or with this part.


Sec.  803.12  Constant-rate aquifer testing.

    (a) A project sponsor submitting an application pursuant to Sec.  
803.13 seeking approval to withdraw or increase a withdrawal of 
groundwater shall perform a constant-rate aquifer test prior to 
submission of such application.
    (b) The project sponsor shall prepare a constant-rate aquifer test 
plan for prior review and approval by Commission staff before testing 
is undertaken.
    (c) Unless otherwise specified, approval of a test plan is valid 
for two years from the date of approval.
    (d) Approval of a test plan shall not be construed to limit the 
authority of the Commission to require additional testing or monitoring 
at any time (both before an approval and after).


Sec.  803.13  Submission of application.

    (a) Project sponsors of projects subject to the review and approval 
of the Commission under Sec.  803.4 shall, prior to the time the 
project is undertaken, submit an application to the Commission.
    (b) Project sponsors submitting an application for approval due to 
a change in ownership of a project as required by Sec.  803.4(a)(5), 
(b)(5) or (c)(4) of this part shall be permitted to continue operation 
of the project under an existing Commission approval pending action on 
the application by the Commission, provided that:
    (1) On or before the date of transfer under which a change of 
ownership occurs, such project sponsor(s) certify an intention to 
comply with the terms and conditions of the existing Commission 
approval and assume all associated obligations, including the 
requirements of the Commission and the compact, which certification 
shall be on a form and in a manner prescribed by the Commission; and
    (2) The application(s) required for approval are submitted to the 
Commission within ninety (90) days of the date of the transfer.
    (c) To be deemed administratively complete, the application must 
include all information required and the applicable fee.


Sec.  803.14  Contents of application.

    (a) Applications shall include, but not be limited to, the 
following information and, where applicable, shall be submitted on 
forms and in the manner prescribed by the Commission.
    (1) Identification of project sponsor including any and all 
proprietors, corporate officers or partners, the mailing address of the 
same, and the name of the individual authorized to act for the sponsor.
    (2) Description of project and site in terms of:
    (i) Project location.
    (ii) Project purpose.
    (iii) Proposed quantity of water to be withdrawn.
    (iv) Proposed quantity of water to be consumed, if applicable.
    (v) Constant-rate aquifer tests. The project sponsor shall provide 
the results of a constant-rate aquifer test with any application which 
includes a request for a groundwater withdrawal. The project sponsor 
shall obtain Commission approval of the test procedures prior to 
initiation of the constant-rate aquifer test.
    (vi) Water use and availability.
    (vii) All water sources and the date of initiation of each source.
    (viii) Supporting studies, reports, and other information upon 
which assumptions and assertions have been based.
    (ix) Plans for avoiding or mitigating for consumptive use.
    (x) Copies of any correspondence with member jurisdiction agencies.
    (3) Anticipated impact of the proposed project on:
    (i) Surface water characteristics (quality, quantity, flow regimen, 
other hydrologic characteristics).
    (ii) Threatened or endangered species and their habitats.
    (iii) Existing water withdrawals.
    (4) Project estimated completion date and estimated construction 
schedule.
    (b) The Commission may also require the project sponsor to submit 
the following information related to the project, in addition to the 
information required in paragraph (a) of this section, as deemed 
necessary.
    (1) Description of project and site in terms of:

[[Page 38698]]

    (i) Engineering feasibility.
    (ii) Ability of project sponsor to fund the project or action.
    (iii) Identification and description of reasonable alternatives, 
the extent of their economic and technical investigation, and an 
assessment of their potential environmental impact. In the case of a 
proposed diversion, the project sponsor should include information that 
may be required by Sec.  803.25 or any policy of the Commission 
relating to diversions.
    (iv) Compatibility of proposed project with existing and 
anticipated uses.
    (v) Anticipated impact of the proposed project on:
    (A) Flood damage potential considering the location of the project 
with respect to the flood plain and flood hazard zones.
    (B) Recreation potential.
    (C) Fish and wildlife (habitat quality, kind and number of 
species).
    (D) Natural environment uses (scenic vistas, natural and manmade 
travel corridors, wild and wilderness areas, wild, scenic and 
recreation rivers).
    (E) Site development considerations (geology, topography, soil 
characteristics, adjoining and nearby land uses, adequacy of site 
facilities).
    (F) Historical, cultural and archaeological impacts.
    (2) Governmental considerations:
    (i) Need for governmental services or finances.
    (ii) Commitment of government to provide services or finances.
    (iii) Status of application with other governmental regulatory 
bodies.
    (3) Any other information deemed necessary by the Commission.
    (c) A report about the project prepared for any other purpose, or 
an application for approval prepared for submission to a member 
jurisdiction, may be accepted by the Commission provided the said 
report or application addresses all necessary items on the Commission's 
form or listed in this section, as appropriate.


Sec.  803.15  Notice of application.

    (a) The project sponsor shall, no later than 10 days after 
submission of an application to the Commission, notify each 
municipality in which the project is located, the county planning 
agency of each county in which the project is located, and each 
contiguous property owner that an application has been submitted to the 
Commission. The project sponsor shall also publish at least once in a 
newspaper of general circulation serving the area in which the project 
is located, a notice of the submission of the application no later than 
10 days after the date of submission. All notices required under this 
section shall contain a sufficient description of the project, its 
purpose, requested water withdrawal and consumptive use amounts, 
location and address, electronic mail address, and phone number of the 
Commission.
    (b) The project sponsor shall provide the Commission with a copy of 
the United States Postal Service return receipt for the municipal 
notification under (a) and a proof of publication for the newspaper 
notice required under (a). The project sponsor shall also provide 
certification on a form provided by the Commission that it has made 
such other notifications as required under paragraph (a) of this 
section, including a list of contiguous property owners notified under 
paragraph (a). Until these items are provided to the Commission, 
processing of the application will not proceed.


Sec.  803.16  Completeness of application.

    (a) The Commission's staff shall review the application, and if 
necessary, request the project sponsor to provide any additional 
information that is deemed pertinent for proper evaluation of the 
project.
    (b) An application deemed incomplete in accordance with Sec.  
803.13(b) will be returned to the project sponsor, who shall have 30 
days to cure the administrative deficiencies. An application deemed 
technically deficient may be returned to the project sponsor, who shall 
have a period of time prescribed by Commission staff to cure the 
technical deficiencies. Failure to cure either administrative or 
technical deficiencies within the prescribed time may result in 
termination of the application process and forfeiture of any fees 
submitted.
    (c) The project sponsor has a duty to provide information 
reasonably necessary for the Commission's review of the application. If 
the project sponsor fails to respond to the Commission's request for 
additional information, the Commission may terminate the application 
process, close the file and so notify the project sponsor. The project 
sponsor may reapply without prejudice by submitting a new application 
and fee.

Subpart C--Standards for Review and Approval


Sec.  803.20  Purpose of this subpart.

    The purpose of this subpart is to set forth general standards that 
shall be used by the Commission to evaluate all projects subject to 
review and approval by the Commission pursuant to Sec. Sec.  803.4 and 
803.5, and to establish special standards applicable to certain water 
withdrawals, consumptive uses and diversions. This subpart shall not be 
construed to limit the Commission's authority and scope of review. 
These standards are authorized under Sections 3.4(2), 3.4(8), 3.4(9), 
and 3.10 of the compact and are based upon, but not limited to, the 
goals, objectives, guidelines and criteria of the comprehensive plan.


Sec.  803.21  General standards.

    (a) A project shall not be detrimental to the proper conservation, 
development, management, or control of the water resources of the 
basin.
    (b) The Commission may modify and approve as modified, or may 
disapprove, a project if it determines that the project is not in the 
best interest of the conservation, development, management, or control 
of the basin's water resources, or is in conflict with the 
comprehensive plan.
    (c) Disapprovals--other governmental jurisdictions.
    (1) The Commission may suspend the review of any application under 
this part if the project is subject to the lawful jurisdiction of any 
member jurisdiction or any political subdivision thereof, and such 
member jurisdiction or political subdivision has disapproved or denied 
the project. Where such disapproval or denial is reversed on appeal, 
the appeal is final, and the project sponsor provides the Commission 
with a certified copy of the decision, the Commission shall resume its 
review of the application. Where, however, an application has been 
suspended hereunder for a period greater than three years, the 
Commission may terminate its review. Thereupon, the Commission shall 
notify the project sponsor of such termination and that the application 
fee paid by the project sponsor is forfeited. The project sponsor may 
reactivate the terminated docket by reapplying to the Commission, 
providing evidence of its receipt of all necessary governmental 
approvals and, at the discretion of the Commission, submitting new or 
updated information.
    (2) The Commission may modify, suspend or revoke a previously 
granted approval if the project sponsor fails to obtain or maintain the 
approval of a member jurisdiction or political subdivision thereof 
having lawful jurisdiction over the project.


Sec.  803.22  Standards for consumptive uses of water.

    (a) The project sponsors of all consumptive water uses subject to 
review and approval under Sec.  803.4 of this part shall comply with 
this section.

[[Page 38699]]

    (b) Mitigation. All project sponsors whose consumptive use of water 
is subject to review and approval under Sec.  803.4 of this part shall 
mitigate such consumptive use. Except to the extent that the project 
involves the diversion of the waters out of the basin, public water 
supplies shall be exempt from the requirements of this section 
regarding consumptive use; provided, however, that nothing in this 
section shall be construed to exempt individual consumptive users 
connected to any such public water supply from the requirements of this 
section. Mitigation may be provided by one, or a combination of the 
following:
    (1) During low flow periods as may be designated by the Commission 
for consumptive use mitigation.
    (i) Reduce withdrawal from the approved source(s), in an amount 
equal to or greater than the project's total consumptive use, and 
withdraw water from alternative surface water storage or aquifers or 
other underground storage chambers or facilities approved by the 
Commission, from which water can be withdrawn for a period of 90 days 
without impact to surface water flows.
    (ii) Release water for flow augmentation, in an amount equal to the 
project's total consumptive use, from surface water storage or 
aquifers, or other underground storage chambers or facilities approved 
by the Commission, from which water can be withdrawn for a period of 90 
days without impact to surface water flows.
    (iii) Discontinue the project's consumptive use, except that 
reduction of project sponsor's consumptive use to less than 20,000 gpd 
during periods of low flow shall not constitute discontinuance.
    (2) Use, as a source of consumptive use water, surface storage that 
is subject to maintenance of a conservation release acceptable to the 
Commission. In any case of failure to provide the specified 
conservation release, such project shall provide mitigation in 
accordance with paragraph (3), below for the calendar year in which 
such failure occurs, and the Commission will reevaluate the continued 
acceptability of the conservation release.
    (3) Provide monetary payment to the Commission, for annual 
consumptive use, in an amount and manner prescribed by the Commission.
    (4) Provide documentation to the Commission demonstrating that all 
requirements enumerated in the approval are satisfied within 90 days 
from the date of Commission action, unless specified otherwise. These 
items may include, but are not limited to:
    (i) Installation of water conservation release structures.
    (ii) Evaluation of water loss due to system leakage.
    (iii) Installation of measuring devices.
    (iv) Operational plans and/or designs.
    (5) Implement other alternatives approved by the Commission.
    (c) Determination of manner of mitigation. The Commission will, in 
its sole discretion, determine the acceptable manner of mitigation to 
be provided by project sponsors whose consumptive use of water is 
subject to review and approval. Such a determination will be made after 
considering the project's location, source characteristics, anticipated 
amount of consumptive use, proposed method of mitigation and their 
effects on the purposes set forth in Sec.  803.2 of this part, and any 
other pertinent factors. The Commission may modify, as appropriate, the 
manner of mitigation, including the magnitude and timing of any 
mitigating releases, required in a project approval.
    (d) Quality of water released for mitigation. The physical, 
chemical and biological quality of water released for mitigation shall 
at all times meet the quality required for the purposes listed in Sec.  
803.2, as applicable.
    (e) Approval by rule for consumptive uses.
    (1) Any project whose sole source of water for consumptive use is a 
public water supply withdrawal, may be approved under this paragraph 
(e) in accordance with the following, unless the Commission determines 
that the project cannot be adequately regulated under this approval by 
rule:
    (i) Notification of Intent: No fewer than 90 days prior to 
construction or implementation of a project or increase above a 
previously approved quantity of consumptive use, the project sponsor 
shall:
    (A) Submit a Notice of Intent (NOI) on forms prescribed by the 
Commission, and the applicable application fee, along with any required 
attachments.
    (B) Send a copy of the NOI to the appropriate agencies of the 
member state, and to each municipality and county in which the project 
is located.
    (ii) Within 10 days after submittal of an NOI under (i), submit to 
the Commission proof of publication in a newspaper of general 
circulation in the location of the project, a notice of intent to 
operate under this permit by rule, which contains a sufficient 
description of the project, its purposes and its location. This notice 
shall also contain the address, electronic mail address and telephone 
number of the Commission.
    (2) Metering, daily use monitoring and quarterly reporting. The 
project sponsor shall comply with metering, daily use monitoring and 
quarterly reporting as specified in Sec.  803.30.
    (3) Standard conditions. The standard conditions set forth in Sec.  
803.21 above shall apply to projects approved by rule.
    (4) Mitigation. The project sponsor shall comply with mitigation in 
accordance with Sec.  803.22 (b)(2) or (b)(3).
    (5) Compliance with other laws. The project sponsor shall obtain 
all necessary permits or approvals required for the project from other 
federal, state or local government agencies having jurisdiction over 
the project. The Commission reserves the right to modify, suspend or 
revoke any approval under this paragraph (e) if the project sponsor 
fails to obtain or maintain such approvals.
    (6) The Commission will grant or deny approval to operate under 
this approval by rule and will notify the project sponsor of such 
determination, including the quantity of consumptive use approved.
    (7) Approval by rule shall be effective upon written notification 
from the Commission to the project sponsor, shall expire 15 years from 
the date of such notification, shall be deemed to rescind any previous 
consumptive use approvals, and shall be nontransferable.
    (8) The Commission may, on a case-by-case basis, revoke or suspend 
an approval by rule hereunder if it determines that the project sponsor 
is not in compliance with the approval by rule or to avoid adverse 
impacts to the water resources of the basin or otherwise protect public 
health, safety, welfare or water resources.


Sec.  803.23  Standards for water withdrawals.

    (a) The project sponsors of all withdrawals subject to review and 
approval under Sec.  803.4 of this part shall comply with the following 
standards, in addition to those required pursuant to Sec.  803.21.
    (b) Limitations on withdrawals.
    (1) The Commission may limit withdrawals to the amount (quantity 
and rate) of water that is needed to meet the reasonably foreseeable 
needs of the project sponsor.
    (2) The Commission may deny an application, limit or condition an 
approval to ensure that the withdrawal will not cause adverse impacts 
to the water resources of the basin. The Commission may consider, 
without limitation, the following in its consideration of adverse 
impacts: Lowering of groundwater or stream flow levels; rendering 
competing supplies unreliable; affecting other water uses;

[[Page 38700]]

causing water quality degradation that may be injurious to any existing 
or potential water use; affecting fish, wildlife or other living 
resources or their habitat; causing permanent loss of aquifer storage 
capacity; or affecting low flow of perennial or intermittent streams.
    (3) The Commission may impose limitations or conditions to mitigate 
impacts, including without limitation:
    (i) Limit the quantity, timing or rate of withdrawal or level of 
drawdown.
    (ii) Require the project sponsor to provide, at its own expense, an 
alternate water supply or other mitigating measures.
    (iii) Require the project sponsor to implement and properly 
maintain special monitoring measures.
    (iv) Require the project sponsor to implement and properly maintain 
stream flow protection measures.
    (v) Require the project sponsor to develop and implement an 
operations plan acceptable to the Commission.
    (4) The Commission may require the project sponsor to undertake the 
following, to ensure its ability to meet its present or reasonably 
foreseeable water needs from available groundwater or surface water 
without limitation:
    (i) Investigate additional sources or storage options to meet the 
demand of the project.
    (ii) Submit a water resource development plan that shall include, 
without limitation, sufficient data to address any supply deficiencies, 
identify alternative water supply options, and support existing and 
proposed future withdrawals.


Sec.  803.24  Standards for diversions.

    (a) The project sponsors of all diversions subject to review and 
approval under Sec.  803.4 of this part shall comply with the following 
standards.
    (b) For projects involving out-of-basin diversions, the following 
requirements shall apply.
    (1) Project sponsors shall:
    (i) Demonstrate that they have made good faith efforts to develop 
and conserve sources of water within the importing basin, and have 
considered other reasonable alternatives to the diversion.
    (ii) Adhere to all Commission rules, regulations or orders of any 
kind issued under the authority of the compact.
    (iii) Comply with the general standards set forth in Sec. Sec.  
801.3, 803.21, and 803.22, and the applicable requirements of this part 
relating to consumptive uses and withdrawals.
    (2) In deciding whether to approve a proposed diversion out of the 
basin, the Commission shall also consider and the project sponsor shall 
provide information related to the following factors:
    (i) Any adverse effects and cumulative adverse effects the project 
may have on the ability of the Susquehanna River Basin, or any portion 
thereof, to meet its own present and future water needs.
    (ii) The location, amount, timing, purpose and duration of the 
proposed diversion and how the project will individually and 
cumulatively affect the flow of any impacted stream or river, and the 
freshwater inflow of the Chesapeake Bay, including the extent to which 
any diverted water is being returned to the basin or the bay.
    (iii) Whether there is a reasonably foreseeable need for the 
quantity of water requested by the project sponsor and how that need is 
measured against reasonably foreseeable needs in the Susquehanna River 
Basin.
    (iv) The amount and location of water being diverted to the 
Susquehanna River Basin from the importing basin.
    (v) The proximity of the project to the Susquehanna River Basin.
    (vi) The project sponsor's pre-compact member jurisdiction 
approvals to withdraw or divert the waters of the basin.
    (vii) Historic reliance on sources within the Susquehanna River 
Basin.
    (3) In deciding whether to approve a proposed diversion out of the 
basin, the Commission may also consider, but is not limited to, the 
factors set forth in paragraphs (i) through (v) of this paragraph 
(b)(3). The decision whether to consider the factors in this paragraph 
(b) and the amount of information required for such consideration, if 
undertaken, will depend upon the potential for the proposed diversion 
to have an adverse impact on the ability of the Susquehanna River 
Basin, or any portion thereof, to meet its own present and future 
needs.
    (i) The impact of the diversion on economic development within the 
Susquehanna River Basin, the member states or the United States of 
America.
    (ii) The cost and reliability of the diversion versus other 
alternatives, including certain external costs, such as impacts on the 
environment or water resources.
    (iii) Any policy of the member jurisdictions relating to water 
resources, growth and development.
    (iv) How the project will individually and cumulatively affect 
other environmental, social and recreational values.
    (v) Any land use and natural resource planning being carried out in 
the importing basin.
    (c) For projects involving into-basin diversions, the following 
requirements shall apply.
    (1) Project sponsors shall:
    (i) Provide information on the source, amount, and location of the 
waterbody being diverted to the Susquehanna River Basin from the 
importing basin.
    (ii) Provide information on the water quality classification, if 
any, of the Susquehanna River Basin stream to which diverted water is 
being discharged and the discharge location or locations.
    (iii) Demonstrate that they have applied for or received all 
applicable withdrawal or discharge permits or approvals related to the 
diversion, and must demonstrate that the diversion will not result in 
water quality degradation that may be injurious to any existing or 
potential ground or surface water use.


Sec.  803.25  Water conservation standards.

    Any project sponsor whose project is subject to Commission approval 
under this part proposing to withdraw water either directly or 
indirectly (through another user) from ground or surface water sources, 
or both, shall comply with the following requirements:
    (a) Public water supply. As circumstances warrant, a project 
sponsor of a public water supply shall:
    (1) Reduce distribution system losses to a level not exceeding 20 
percent of the gross withdrawal.
    (2) Install meters for all users.
    (3) Establish a program of water conservation that will:
    (i) Require installation of water conservation devices, as 
applicable, by all classes of users.
    (ii) Prepare and distribute literature to customers describing 
available water conservation techniques.
    (iii) Implement a water pricing structure which encourages 
conservation.
    (iv) Encourage water reuse.
    (b) Industrial. Project sponsors who use water for industrial 
purposes shall:
    (1) Designate a company representative to manage plant water use.
    (2) Install meters or other suitable devices or utilize acceptable 
flow measuring methods for accurate determination of water use by 
various parts of the company operation.
    (3) Install flow control devices which match the needs of the 
equipment being used for production.
    (4) Evaluate and utilize applicable recirculation and reuse 
practices.
    (c) Irrigation. Project sponsors who use water for irrigation 
purposes shall utilize irrigation systems properly

[[Page 38701]]

designed for the sponsor's respective soil characteristics, topography 
and vegetation.
    (d) Effective date. Notwithstanding the effective date for other 
portions of this part, this section shall apply to all ground and 
surface water withdrawals initiated on or after January 11, 1979.

Subpart D--Terms and Conditions of Approval


Sec.  803.30  Monitoring.

    The Commission, as part of the project review, shall evaluate the 
proposed methodology for monitoring consumptive uses, water withdrawals 
and mitigating flows, including flow metering devices, stream gages, 
and other facilities used to measure the withdrawals or consumptive use 
of the project or the rate of stream flow. If the Commission determines 
that additional flow measuring, metering or monitoring devices are 
required, these shall be provided at the expense of the project 
sponsor, installed in accordance with a schedule set by the Commission, 
be accurate to within 5 percent, and shall be subject to inspection by 
the Commission at any time.
    (a) Project sponsors of projects that are approved under this part 
shall:
    (1) Measure and record on a daily basis, or such other frequency as 
may be approved by the Commission, the quantity of all withdrawals, 
using meters or other methods approved by the Commission.
    (2) Certify, at the time of installation and no less frequently 
than once every 5 years, the accuracy of all measuring devices and 
methods to within 5 percent of actual flow, unless specified otherwise 
by the Commission.
    (3) Maintain metering or other approved methods so as to provide a 
continuous, accurate record of the withdrawal or consumptive use.
    (4) Measure groundwater levels in all approved production wells, as 
specified by the Commission.
    (5) Measure groundwater levels at additional monitoring locations, 
as specified by the Commission.
    (6) Measure water levels in surface storage facilities, as 
specified by the Commission.
    (7) Measure stream flows, passby flows or conservation releases, as 
specified by the Commission, using methods and at frequencies approved 
by the Commission.
    (b) Reporting.
    (1) Project sponsors whose projects are approved under this section 
shall report to the Commission on a quarterly basis on forms and in a 
manner prescribed by the Commission all information recorded under 
paragraph (a) of this section, unless otherwise specified by the 
Commission.
    (2) Project sponsors whose projects are approved under this section 
shall report to the Commission:
    (i) Violations of withdrawal limits and any conditions of 
approvals, within 5 days of such violation.
    (ii) Loss of measuring or recording capabilities required under 
paragraph (a)(1) of this section, within 1 day after any such loss 
continues for 5 consecutive days.


Sec.  803.31  Duration of approvals and renewals.

    (a) After ------------------------, approvals issued under this 
part shall have a duration equal to the term of any accompanying member 
jurisdiction license or permit regulating the same subject matter, but 
not longer than 15 years. If there is no such accompanying license or 
permit, or if no term is specified in such accompanying license or 
permit, the duration of a Commission approval issued under this part 
shall be no longer than 15 years. A project approved by the Commission 
prior to May 11, 1995, which did not specify a duration, shall have a 
duration of 30 years commencing on the date of initial approval, 
except, if there is an accompanying member jurisdiction license or 
permit regulating the same subject matter and specifying a duration of 
no more than 25 years, then the duration of the Commission approval 
shall be equal to the duration of the initial member jurisdiction 
approval.
    (b) Commission approval of a project shall expire 3 years from the 
date of such approval if the withdrawal, diversion or consumptive use 
has not been commenced, unless extended in writing by the Commission 
upon written request from the project sponsor submitted no later than 
120 days prior to such expiration. The Commission may grant an 
extension, for a period not to exceed 2 years, only upon a 
determination that the delay is due to circumstances beyond the project 
sponsor's control and that there is a likelihood of project 
implementation within a reasonable period of time. The Commission may 
also attach conditions to the granting of such extensions, including 
modification of any terms of approval that the Commission may deem 
appropriate.
    (c) If a withdrawal, diversion or consumptive use approved by the 
Commission for a project is discontinued for a period of 5 consecutive 
years, the approval shall be null and void, unless a waiver is granted 
in writing by the Commission, upon written request by the project 
sponsor demonstrating due cause, prior to the expiration of such 
period.
    (d) If the Commission determines that a project has been abandoned, 
by evidence of nonuse for a period of time and under such circumstances 
that an abandonment may be inferred, the Commission may rescind the 
approval for such withdrawal, diversion or consumptive use.
    (e) Project sponsors shall apply for renewal of an approval no 
later than one year prior to the expiration of such approval. Such 
applications for renewal shall be submitted and reviewed in accordance 
with the same procedures and standards as for newly proposed projects. 
If a complete application is submitted in accordance with this 
requirement, the existing approval will be deemed extended until such 
time as the Commission renders a decision on the application unless the 
Commission notifies the project sponsor otherwise in writing.


Sec.  803.32  Reopening/modification.

    (a) Once approved, the Commission, upon its own motion, or upon 
application of the project sponsor or any interested party, may at any 
time reopen any project docket and make additional orders that may be 
necessary to mitigate or avoid adverse impacts or to otherwise protect 
the public health, safety, and welfare or water resources. Whenever an 
application for reopening is filed by an interested party, the burden 
shall be upon that interested party to show, by a preponderance of the 
evidence, that a substantial adverse impact or a threat to the public 
health, safety and welfare or water resources exists that warrants 
reopening of the docket.
    (b) If the project sponsor fails to comply with any term or 
condition of a docket approval, the commissioners may issue an order 
suspending, modifying or revoking its approval of the docket. The 
commissioners may also, in their discretion, suspend, modify or revoke 
a docket approval if the project sponsor fails to obtain or maintain 
other federal, state or local approvals.
    (c) For any previously approved project where interference occurs, 
the Commission may require a project sponsor to provide a temporary 
source of potable water at its expense, pending a final determination 
of causation by the Commission.
    (d) The Commission, upon its own motion, may at any time reopen any 
project docket and make additional corrective modifications that may be 
necessary.

[[Page 38702]]

Sec.  803.33  Interest on fees.

    The Executive Director may establish interest to be paid on all 
overdue or outstanding fees of any nature that are payable to the 
Commission.


Sec.  803.34  Emergencies.

    (a) Emergency certificates. The other requirements of these 
regulations notwithstanding, in the event of an emergency requiring 
immediate action to protect the public health, safety and welfare or to 
avoid substantial and irreparable injury to any person, property, or 
water resources when circumstances do not permit a review and 
determination in the regular course of the regulations in this part, 
the Executive Director, with the concurrence of the chairperson of the 
Commission and the commissioner from the affected member state, may 
issue an emergency certificate authorizing a project sponsor to take 
such action as the Executive Director may deem necessary and proper in 
the circumstances, pending review and determination by the Commission 
as otherwise required by this part.
    (b) Notification and application. A project sponsor shall notify 
the Commission, prior to commencement of the project, that an emergency 
certificate is needed. If immediate action, as defined by this section, 
is required by a project sponsor and prior notice to the Commission is 
not possible, then the project sponsor must contact the Commission 
within one (1) business day of the action. Notification may be by 
certified mail, facsimile, telegram, mailgram, or other form of written 
communication. This notification must be followed within one (1) 
business day by submission of the following information:
    (1) An emergency application form or copy of the State or Federal 
emergency water use application if the project sponsor also is 
requesting emergency approval from either a state or federal agency.
    (2) As a minimum, the application information shall contain:
    (i) Contact information.
    (ii) Justification for emergency action (purpose).
    (iii) Location map and schematic of proposed project.
    (iv) Desired term of emergency use.
    (v) Source(s) of the water.
    (vi) Quantity of water.
    (vii) Flow measurement system (such as metering).
    (viii) Use restrictions in effect (or planned).
    (ix) Description of potential adverse impacts and mitigating 
measures.
    (x) Appropriate fee.
    (c) Emergency certificate issuance. The Executive Director shall:
    (1) Review and act on the emergency request as expeditiously as 
possible upon receipt of all necessary information stipulated in 
paragraph (b) (2) of this section.
    (2) With the concurrence of the chairperson of the Commission and 
the commissioner from the affected member state, issue an emergency 
certificate for a term not to extend beyond the next regular business 
meeting of the Commission.
    (3) Include conditions in the emergency certificate which may 
include, without limitation, monitoring of withdrawal and/or 
consumptive use amounts, measurement devices, public notification, and 
reporting, to assure minimal adverse impacts to the environment and 
other users.
    (d) Post approval. Actions following issuance of emergency 
certificates may include, but are not limited to, the following:
    (1) The Commission may, by resolution, extend the term of the 
emergency certificate, upon presentation of a request from the project 
sponsor accompanied by appropriate evidence that the conditions causing 
the emergency persist.
    (2) If the condition is expected to persist longer than the 
specified extended term, the project sponsor must submit an application 
to the Commission for applicable water withdrawal or consumptive use, 
or the emergency certificate will terminate as specified. If the 
project sponsor has a prior Commission approval for the project, the 
project sponsor must submit an application to modify the existing 
docket accordingly.
    (e) Early termination. With the concurrence of the chairperson of 
the Commission and the commissioner from the affected member state, the 
Executive Director may terminate an emergency certificate earlier than 
the specified duration if it is determined that an emergency no longer 
exists and/or the certificate holder has not complied with one or more 
special conditions for the emergency withdrawal or consumptive water 
use.
    (f) Restoration/mitigation. Project sponsors are responsible for 
any necessary restoration or mitigation of environmental damage or 
interference with another user that may occur as a result of the 
emergency action.


Sec.  803.35  Fees.

    Project sponsors shall have an affirmative duty to pay such fees as 
established by the Commission.

PART 804--WATER WITHDRAWAL REGISTRATION

Sec.
804.1 Requirement.
804.2 Time limits.
804.3 Administrative agreements.
804.4 Effective date.
804.5 Definitions.

    Authority: Secs. 3.4(2) and (9), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.


Sec.  804.1  Requirement.

    In addition to any other requirements of Commission regulations, 
and subject to the consent of the affected member state to this 
requirement, any person withdrawing or diverting in excess of an 
average of 10,000 gpd for any consecutive 30-day period, from ground or 
surface water sources, as defined in part 803 of this chapter, shall 
register the amount of this withdrawal with the Commission and provide 
such other information as requested on forms prescribed by the 
Commission.


Sec.  804.2  Time limits.

    (a) Except for agricultural water use projects, all registration 
forms shall be submitted within one year after May 11, 1995, or within 
six months of initiation of the water withdrawal or diversion, 
whichever is later; provided, however, that nothing in this section 
shall limit the responsibility of a project sponsor to apply for and 
obtain an approval as may be required under part 803 of this chapter. 
All registered withdrawals shall re-register with the Commission within 
five years of their initial registration, and at five-year intervals 
thereafter, unless the withdrawal is sooner discontinued. Upon notice 
by the Executive Director, compliance with a registration or reporting 
requirement, or both, of a member state, that is substantially 
equivalent to this requirement shall be considered compliance with this 
requirement.
    (b) Project sponsors whose existing agricultural water use projects 
(i.e., projects coming into existence prior to March 31, 1997) withdraw 
or divert in excess of an average of 10,000 gpd for any consecutive 30-
day period from a ground or surface water source shall register their 
use no later than March 31, 1997. Thereafter, project sponsors of new 
projects proposing to withdraw or divert in excess of 10,000 gpd for 
any consecutive 30-day period from a ground or surface water source 
shall be registered prior to project initiation.


Sec.  804.3  Administrative agreements.

    The Commission may complete appropriate administrative agreements 
or informal arrangements to carry out this registration requirement 
through

[[Page 38703]]

the offices of member jurisdictions. Forms developed by the Commission 
shall apprise registrants of any such agreements or arrangements, and 
provide appropriate instructions to complete and submit the form.


Sec.  804.4  Effective date.

    This part shall be effective on May 11, 1995, and shall apply to 
all present and future withdrawals or diversions irrespective of when 
such withdrawals or diversions were initiated.


Sec.  804.5  Definitions.

    Terms used in this part shall be defined as set forth in Sec.  
803.3 of this chapter.

PART 805--HEARINGS/ENFORCEMENT ACTIONS

Subpart A--Conduct of Hearings
Sec.
805.1 Public hearings.
805.2 Administrative appeals.
805.3 Hearing on administrative appeal.
805.4 Optional joint hearing.
Subpart B--Compliance and Enforcement
805.10 Scope of subpart.
805.11 Duty to comply.
805.12 Investigative powers.
805.13 Notice of Violation.
805.14 Orders.
805.15 Show cause proceeding.
805.16 Civil penalty criteria.
805.17 Enforcement of penalties/abatement or remedial orders.
805.18 Settlement by agreement.

    Authority: Secs. 3.5 (9), 3.5 (5), 3.8, 3.10, and 15.2, Pub. L. 
91-575, 84 Stat. 1509 et seq.

Subpart A--Conduct of Hearings


Sec.  805.1  Public hearings.

    (a) A public hearing shall be conducted in the following instances:
    (1) Addition of projects or adoption of amendments to the 
comprehensive plan, except as otherwise provided by Section 14.1 of the 
compact.
    (2) Rulemaking, except for corrective amendments.
    (3) Consideration of projects, except projects approved pursuant to 
memoranda of understanding with member jurisdictions.
    (4) Hearing requested by a member jurisdiction.
    (5) As otherwise required by the compact or Commission regulations.
    (b) A public hearing may be conducted by the Commission in any form 
or style chosen by the Commission when in the opinion of the 
Commission, a hearing is either appropriate or necessary to give 
adequate consideration to issues relating to public health, safety and 
welfare, or protection of the environment, or to gather additional 
information for the record or consider new information, or to decide 
factual disputes in connection with matters pending before the 
Commission.
    (c) Notice of public hearing. At least 20 days before any public 
hearing required by the compact, notices stating the date, time, place 
and purpose of the hearing including issues of interest to the 
Commission shall be published at least once in a newspaper or 
newspapers of general circulation in the area affected. Occasions when 
public hearings are required by the compact include, but are not 
limited to, amendments to the comprehensive plan, drought emergency 
declarations, and review and approval of diversions. In all other 
cases, at least 10 days prior to the hearing, notice shall be posted at 
the office of the Commission (or on the Commission Web site), mailed by 
first class mail to the parties who, to the Commission's knowledge, 
will participate in the hearing, and mailed by first class mail to 
persons, organizations and news media who have made requests to the 
Commission for notices of hearings or of a particular hearing. In the 
case of hearings held in connection with rulemaking, notices need only 
be forwarded to the directors of the New York Register, the 
Pennsylvania Bulletin, the Maryland Register, and the Federal Register, 
and it is sufficient that this notice appear only in the Federal 
Register at least 20 days prior to the hearing and in each individual 
state publication at least 10 days prior to any hearing scheduled in 
that state.
    (d)  Standard public hearing procedure.
    (1) Hearings shall be open to the public. Participants to a public 
hearing shall be the project sponsor and the Commission staff. 
Participants may also be any person wishing to appear at the hearing 
and make an oral or written statement. Statements may favor or oppose 
the project/proposal, or may simply express a position without 
specifically favoring or opposing the project/proposal. Statements 
shall be made a part of the record of the hearing, and written 
statements may be received up to and including the last day on which 
the hearing is held, or within a reasonable time thereafter as may be 
specified by the presiding officer, which time shall be not less than 
10 days nor more than 30 days, except that a longer time may be 
specified if requested by a participant.
    (2) Participants (except the project sponsor and the Commission 
staff) are encouraged to file with the Commission at its headquarters 
written notice of their intention to appear at the hearing. The notice 
should be filed at least three days prior to the opening of the 
hearing.
    (e) Representative capacity. Participants wishing to be heard at a 
public hearing may appear in person or be represented by an attorney or 
other representative. A governmental authority may be represented by 
one of its officers, employees or by a designee of the governmental 
authority. Any individual intending to appear before the Commission in 
a representative capacity on behalf of a participant shall give the 
Commission written notice of the nature and extent of his/her 
authorization to represent the person on whose behalf he/she intends to 
appear.
    (f)  Description of project. When notice of a public hearing is 
issued, there shall be available for inspection at the Commission 
offices such plans, summaries, maps, statements, orders or other 
supporting documents which explain, detail, amplify, or otherwise 
describe the project the Commission is considering. Instructions on 
where and how the documents may be obtained will be included in the 
notice.
    (g)  Presiding officer. A public hearing shall be presided over by 
the Commission chair, the Executive Director, or any member or designee 
of the Commission. The presiding officer shall have full authority to 
control the conduct of the hearing and make a record of the same.
    (h)  Transcript. Whenever a project involving a diversion of water 
is the subject of a public hearing, and at all other times deemed 
necessary by the Commission or the Executive Director, a written 
transcript of the hearing shall be made. Other public hearings may be 
electronically recorded and a transcript made only if deemed necessary 
by the Executive Director or general counsel. A certified copy of the 
transcript and exhibits shall be available for review during business 
hours at the Commission's headquarters to anyone wishing to examine 
them. Persons wishing to obtain a copy of the transcript of any hearing 
shall make arrangements to obtain it directly from the recording 
stenographer at their expense.
    (i) The Commission may conduct any public hearings in concert with 
any other agency of a member jurisdiction.


Sec.  805.2  Administrative appeals.

    (a) A project sponsor or other person aggrieved by any action or 
decision of the Commission or Executive Director, may file a written 
appeal requesting a hearing. Such appeal shall be filed with the 
Commission within 30 days of that action or decision.

[[Page 38704]]

    (b) The appeal shall identify the specific action or decision for 
which a hearing is requested, the date of the action or 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.
    (c) Any request filed more than 30 days after an action or decision 
will be deemed untimely and such request for a hearing shall be 
considered denied unless upon due cause shown the Commission by 
unanimous vote otherwise directs. Receipt of requests for hearings, 
pursuant to this section, whether timely filed or not, shall be 
submitted by the Executive Director to the commissioners for their 
information.
    (d) Hearings may be conducted by one or more members of the 
Commission, by the Executive Director, or by such other hearing officer 
as the Commission may designate.
    (1) The petitioner or an intervener may also request a stay of the 
action or decision giving rise to the appeal pending final disposition 
of the appeal, which stay may be granted or denied by the Executive 
Director after consultation with the Commission chair and the member 
from the affected jurisdiction.
    (2) The request for a stay shall include:
    (i) Affidavits setting forth facts upon which issuance of the stay 
may depend.
    (ii) An explanation of why affidavits have not accompanied the 
petition if no supporting affidavits are submitted.
    (iii) The citations of applicable legal authority, if any.
    (3) In addition to the contents of the request itself, the 
Executive Director, in granting or denying the request for stay, will 
consider the following factors:
    (i) Irreparable harm to the petitioner or intervener.
    (ii) The likelihood that the petitioner or intervener will prevail 
on the merits.
    (iii) The likelihood of injury to the public or other parties.
    (e) The Commission shall grant the hearing request pursuant to this 
section if it determines that an adequate record with regard to the 
action or decision is not available, the 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 
review 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.
    (f) If administrative review is granted, the Commission shall refer 
the matter for hearing, to be held in accordance with Sec.  805.3, and 
appoint a hearing officer.
    (g) Intervention.
    (1) If a hearing is scheduled, a notice of intervention may be 
filed with the Commission by persons other than the petitioner no later 
than 10 days before the date of the hearing. The notice of intervention 
shall state the interest of the person filing such notice, and the 
specific grounds of objection to the action or decision or other 
grounds for appearance.
    (2) Any person filing a notice of intervention whose legal rights 
may be affected by the decision rendered hereunder 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 the subject matter of any hearing 
scheduled hereunder for inclusion in the record may submit a verified 
written statement to the Commission. Any interested party may submit a 
request to examine or cross-examine any person who submits a written 
statement. In the absence of a request for examination of such person, 
all verified written statements submitted shall be included with the 
record and such statements may be relied upon to the extent determined 
by the Hearing Officer or the Commission.
    (h) Notice of any hearing to be conducted pursuant to this section 
shall comply with the provisions of Section 15.4 (b) of the compact 
relating to public notice unless otherwise directed by the Commission. 
In addition, both the petitioner and any interveners shall provide 
notice of their filings under this section to the list of additional 
interested parties compiled by the Commission under Sec.  803.14 (a).
    (i) Where a request for an appeal is made, the 90-day appeal period 
set forth in Section 3.10 (6) and Federal reservation (o) of the 
compact shall not commence until the Commission has either denied the 
request for or taken final action on an administrative appeal.


Sec.  805.3  Hearing on administrative appeal.

    (a) Unless otherwise agreed to by the Commission and the party 
requesting an administrative appeal under Sec.  805.2 of this part, the 
following procedures shall govern the conduct of hearing on an 
administrative appeal.
    (b)  Hearing procedure.
    (1) The hearing officer shall have the power to rule upon offers of 
proof and the admissibility of evidence, to regulate the course of the 
hearing, to set the location or venue of the hearing, to hold 
conferences for the settlement or simplification of issues and the 
stipulation of facts, to determine the proper parties to the hearing, 
to determine the scope of any discovery procedures, to delineate the 
hearing issues to be adjudicated, and to take notice of judicially 
cognizable facts and general, technical, or scientific facts. The 
hearing officer may, with the consent of the parties, conduct all or 
part of the hearing or related proceedings by telephone conference call 
or other electronic means.
    (2) The hearing officer shall cause each witness to be sworn or to 
make affirmation.
    (3) Any party to a hearing shall have the right to present 
evidence, to examine and cross-examine witnesses, submit rebuttal 
evidence, and to present summation and argument.
    (4) When necessary, in order to prevent undue prolongation of the 
hearing, the hearing officer may limit the number of times any witness 
may testify, the repetitious examination or cross-examination of 
witnesses, or the extent of corroborative or cumulative testimony.
    (5) The hearing officer shall exclude irrelevant, immaterial or 
unduly repetitious evidence, but the parties shall not be bound by 
technical rules of evidence, and all relevant evidence of reasonably 
probative value may be received provided it shall be founded upon 
competent, material evidence which is substantial in view of the entire 
record.
    (6) Any party may appear and be heard in person or be represented 
by an attorney at law who shall file an appearance with the Commission.
    (7) Briefs and oral argument may be required by the hearing officer 
and may be permitted upon request made prior to the close of the 
hearing by any party. They shall be part of the record unless otherwise 
ordered by the presiding officer.
    (8) The hearing officer may, as he/she deems appropriate, issue 
subpoenas in the name of the Commission requiring the appearance of 
witnesses or the production of books, papers, and other documentary 
evidence for such hearings.
    (9) 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 petitioner, or any other person who is 
a party to the appeal proceedings, or where deemed necessary by the 
Hearing Officer, the testimony shall be transcribed. In those

[[Page 38705]]

instances where a transcript of proceedings is made, two copies shall 
be delivered to the Commission. The petitioner 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.
    (c) Staff and other expert testimony. The Executive Director shall 
arrange for the presentation of testimony by the Commission's technical 
staff and other experts, as he/she may deem necessary or desirable, to 
be incorporated in the record to support the administrative action, 
determination or decision which is the subject of the hearing.
    (d) Written testimony. If the direct testimony of an expert witness 
is expected to be lengthy or of a complex, technical nature, the 
presiding officer may order that such direct testimony be submitted to 
the Commission in sworn, written form. Copies of said testimony shall 
be served upon all parties appearing at the hearing at least 10 days 
prior to said hearing. Such written testimony, however, shall not be 
admitted whenever the witness is not present and available for cross-
examination at the hearing unless all parties have waived the right of 
cross-examination.
    (e) Assessment of costs.
    (1) Whenever a hearing is conducted, the costs thereof, as herein 
defined, shall be assessed by the presiding officer to the petitioner 
or such other party as the hearing officer deems equitable. For the 
purposes of this section, costs include all incremental costs incurred 
by the Commission, including, but not limited to, hearing officer and 
expert consultants reasonably necessary in the matter, stenographic 
record, rental of the hall and other related expenses.
    (2) Upon the scheduling of a matter for hearing, the hearing 
officer shall furnish to the petitioner a reasonable estimate of the 
costs to be incurred under this section. The project sponsor 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 
member state.
    (3) A party to an appeal under this section who desires to proceed 
in forma pauperis shall submit an affidavit to the Commission 
requesting the same and showing in detail the assets possessed by the 
party, and other information indicating the reasons why that party is 
unable to pay costs incurred under this section or to give security for 
such costs. The Commission may grant or refuse the request based upon 
the contents of the affidavit or other factors, such as whether it 
believes the appeal or intervention is taken in good faith.
    (f) Findings and report. The hearing officer shall prepare a report 
of his/her findings and recommendations based on the record of the 
hearing. The report shall be served by personal service or certified 
mail (return receipt requested) upon each party to the hearing or its 
counsel. Any party may file objections to the report. Such objections 
shall be filed with the Commission and served on all parties within 20 
days after the service of the report. A brief shall be filed together 
with objections. Any replies to the objections shall be filed and 
served on all parties within 10 days of service of the objections. 
Prior to its decision on such objections, the Commission may grant a 
request for oral argument upon such filing.
    (g) Action by the Commission. The Commission will act upon the 
findings and recommendations of the presiding officer pursuant to law. 
The determination of the Commission will be in writing and shall be 
filed in Commission records 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.


Sec.  805.4  Optional joint hearing.

    (a) The Commission may order any two or more public hearings 
involving a common or related question of law or fact to be 
consolidated for hearing on any or all the matters at issue in such 
hearings.
    (b) Whenever designated by a department, agency or instrumentality 
of a member jurisdiction, and within any limitations prescribed by the 
designation, a hearing officer designated pursuant to Sec.  805.2 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 Susquehanna 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 member jurisdiction (other than the compact).

Subpart B--Compliance and Enforcement


Sec.  805.10  Scope of subpart.

    This subpart shall be applicable where there is reason to believe 
that a person may have violated any provision of the compact, or the 
Commission's rules, regulations, orders, approvals, docket conditions, 
or any other requirements of the Commission. The said person shall 
hereinafter be referred to as the alleged violator.


Sec.  805.11  Duty to comply.

    It shall be the duty of any person to comply with any provision of 
the compact, or the Commission's rules, regulations, orders, approvals, 
docket conditions, or any other requirements of the Commission.


Sec.  805.12  Investigative powers.

    (a) The Commission or its agents or employees, at any reasonable 
time and upon presentation of appropriate credentials, may inspect or 
investigate any person or project to determine compliance with any 
provisions of the compact, or the Commission's rules, regulations, 
orders, approvals, docket conditions, or any other requirements of the 
Commission. Such employees or agents are authorized to conduct tests or 
sampling; to take photographs; to perform measurements, surveys, and 
other tests; to inspect the methods of construction, operation, or 
maintenance; to inspect all measurement equipment; and to audit, 
examine, and copy books, papers, and records pertinent to any matter 
under investigation. Such employees or agents are authorized to take 
any other action necessary to assure that any project is constructed, 
operated and maintained in accordance with any provisions of the 
compact, or the Commission's rules, regulations, orders, approvals, 
docket conditions, or any other requirements of the Commission.
    (b) Any person shall allow authorized employees or agents of the 
Commission, without advance notice or a search warrant, at any 
reasonable time and upon presentation of appropriate credentials, and 
without delay, to have access to and to inspect all areas where a 
project is being constructed, operated, or maintained.
    (c) Any person shall provide such information to the Commission as 
the Commission may deem necessary to determine compliance with any 
provisions of the compact, or the Commission's rules, regulations, 
orders, approvals, docket conditions, or any other requirements of the 
Commission. The person submitting information to the Commission shall 
verify that it is

[[Page 38706]]

true and accurate to the best of the knowledge, information, and belief 
of the person submitting such information. Any person who knowingly 
submits false information to the Commission shall be subject to civil 
penalties as provided in the compact and criminal penalties under the 
laws of the member jurisdictions relating to unsworn falsification to 
authorities.


Sec.  805.13  Notice of Violation.

    When the Executive Director or his/her designee issues a Notice of 
Violation (NOV) to an alleged violator, such NOV will:
    (a) List the violations that are alleged to have occurred.
    (b) State a date by which the alleged violator shall respond to the 
NOV.


Sec.  805.14  Orders.

    (a) Whether or not an NOV has been issued, where exigent 
circumstances warrant, the Executive Director may issue an order 
directing an alleged violator to cease and desist any action or 
activity to the extent such action or activity constitutes an alleged 
violation, or may issue any other order related to the prevention of 
further violations, or the abatement or remediation of harm caused by 
the action or activity.
    (b) If the project sponsor fails to comply with any term or 
condition of a docket approval, the commissioners may issue an order 
suspending, modifying or revoking approval of the docket. The 
commissioners may also, in their discretion, suspend, modify or revoke 
a docket approval if the project sponsor fails to obtain or maintain 
other federal, state or local approvals.
    (c) The commissioners may issue such other orders as may be 
necessary to enforce any provision of the compact, the Commission's 
rules or regulations, orders, approvals, docket conditions, or any 
other requirements of the Commission.
    (d) It shall be the duty of any person to proceed diligently to 
comply with any order issued pursuant to this section.


Sec.  805.15  Show cause proceeding.

    (a) The Executive Director may issue an order requiring an alleged 
violator to appear before the Commission and show cause why a penalty 
should not be assessed in accordance with the provisions of this 
chapter and Section 15.17 of the compact. The order to the alleged 
violator shall:
    (1) Specify the nature and duration of violation(s) that is alleged 
to have occurred.
    (2) Set forth the date and time on which, and the location where, 
the alleged violator shall appear before the Commission.
    (3) Set forth any information to be submitted or produced by the 
alleged violator.
    (4) Identify the limits of the civil penalty that will be 
recommended to the Commission.
    (5) Name the individual(s) who has been appointed as the 
enforcement officer(s) in this matter pursuant to paragraph (b) of this 
section.
    (b) Simultaneous with the issuance of the order to show cause, the 
Executive Director shall designate a staff member(s) to act as 
prosecuting officer(s).
    (c) In the proceeding before the Commission, the prosecuting 
officer(s) shall present the facts upon which the alleged violation is 
based and may call any witnesses and present any other supporting 
evidence.
    (d) In the proceeding before the Commission, the alleged violator 
shall have the opportunity to present both oral and written testimony 
and information, call such witnesses and present such other evidence as 
may relate to the alleged violation(s).
    (e) The Commission shall require witnesses to be sworn or make 
affirmation, documents to be certified or otherwise authenticated and 
statements to be verified. The Commission may also receive written 
submissions or oral presentations from any other persons as to whether 
a violation has occurred and any resulting adverse consequences.
    (f) The prosecuting officer(s) shall recommend to the Commission 
the amount of the penalty to be imposed. Based upon the record 
presented to the Commission, the Commission shall determine whether a 
violation(s) has occurred that warrants the imposition of a penalty 
pursuant to Section 15.17 of the compact. If it is found that such a 
violation(s) has occurred, the Commission shall determine the amount of 
the penalty to be paid, in accordance with Sec.  805.16.


Sec.  805.16  Civil penalty criteria.

    (a) In determining the amount of any civil penalty or any 
settlement of a violation, the Commission shall consider:
    (1) Previous violations, if any, of any provision of the compact, 
the Commission's rules or regulations, orders, approvals, docket 
conditions or any other requirements of the Commission.
    (2) The intent of the alleged violator.
    (3) The extent to which the violation caused adverse consequences 
to public health, safety and welfare or to water resources.
    (4) The costs incurred by the Commission or any member jurisdiction 
relating to the failure to comply with any provision of the compact, 
the Commission's rules or regulations, orders, approvals, docket 
conditions or any other requirements of the Commission.
    (5) The extent to which the violator has cooperated with the 
Commission in correcting the violation and remediating any adverse 
consequences or harm that has resulted therefrom.
    (6) The extent to which the failure to comply with any provision of 
the compact, the Commission's rules or regulations, orders, approvals, 
docket conditions or any other requirements of the Commission was 
economically beneficial to the violator.
    (7) The length of time over which the violation occurred and the 
amount of water used during that time period.
    (b) The Commission retains the right to waive any penalty or reduce 
the amount of the penalty recommended by the prosecuting officer under 
Sec.  805.15(f) should it determine, after consideration of the factors 
in paragraph (a) of this section, that extenuating circumstances 
justify such action.


Sec.  805.17  Enforcement of penalties/abatement or remedial orders.

    Any penalty imposed or abatement or remedial action ordered by the 
Commission or the Executive Director shall be paid or completed within 
such time period as shall be specified in the civil penalty assessment 
or order. The Executive Director and Commission counsel are authorized 
to take such additional action as may be necessary to assure compliance 
with this subpart. If a proceeding before a court becomes necessary, 
the penalty amount determined in accordance with Sec.  805.15(f) shall 
constitute the penalty amount recommended by the Commission to be fixed 
by the court pursuant to Section 15.17 of the compact.


Sec.  805.18  Settlement by agreement.

    (a) An alleged violator may offer to settle an enforcement 
proceeding by agreement. The Executive Director shall submit to the 
Commission any offer of settlement proposed by an alleged violator. No 
settlement will be submitted to the Commission by the Executive 
Director unless the alleged violator has indicated, in writing, 
acceptance of the terms of the agreement and the intention to comply 
with all requirements of the settlement agreement, including advance 
payment of any settlement amount or completion of any abatement or 
remedial action

[[Page 38707]]

within the time period provided or both. If the Commission determines 
not to approve a settlement agreement, the Commission may proceed with 
an enforcement action in accordance with this subpart.
    (b) In the event the violator fails to carry out any of the terms 
of the settlement agreement, the Commission may reinstitute a civil 
penalty action and any other applicable enforcement action against the 
alleged violator.

    Dated: June 14, 2006.
Paul O. Swartz,
Executive Director.
[FR Doc. 06-5632 Filed 7-6-06; 8:45 am]
BILLING CODE 7040-01-P