[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78570-78593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21674]



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Part III





Susquehanna River Basin Commission





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18 CFR Parts 803, 804, 805 et al.



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

  Federal Register / Vol. 71, No. 250 / Friday, December 29, 2006 / 
Rules and Regulations  

[[Page 78570]]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 803, 804, 805, 806, 807 and 808


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

AGENCY: Susquehanna River Basin Commission (SRBC).

ACTION: Final rule.

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SUMMARY: This document contains amendments to the SRBC's project review 
regulations currently published at 18 CFR Parts 803, 804 and 805. The 
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. The amendments were first proposed on July 7, 
2006 in the Federal Register, Vol. 71, No. 130, p. 38692. Comments 
received on the proposed rule making are summarized with accompanying 
responses in the ``Supplementary Information'' section below. Changes 
were made to the proposed rules in the final rule making in response to 
these comments, including the ``removal and reservation'' of Parts 803, 
804 and 805 and the substitution therefore in this final rule making 
action of Parts 806, 807 and 808, respectively.

DATES: These rules shall be effective January 1, 2007.

ADDRESSES: Susquehanna River Basin Commission, 1721 N. Front Street, 
Harrisburg, PA 17102-2391.

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

SUPPLEMENTARY INFORMATION:

Background

    The SRBC proposed rules amending its ``Regulations and Procedures 
for the Review of Projects'' presently found at 18 CFR Parts 803, 804 
and 805, which were published on July 7, 2006 in the FR, Vol. 71, No. 
130, p. 38692. Those rules establish: (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. The SRBC received 
numerous comments on the proposed rule making action, which are 
summarized below with an accompanying response to each. The SRBC made a 
number of adjustments and changes to the proposed rules in this final 
rule making action in response to those comments. One change that 
should be noted is the removal and reservation of 18 CFR Parts 803, 804 
and 805, and the substitution therefore in this final rule making 
action of Parts 806, 807 and 808 respectively. The contents that 
appeared in Parts 803, 804 and 805 of the proposed rule making now 
appear in Parts 806, 807 and 808 respectively; hence, this is not an 
enlargement of the purposes of the proposed rule making, but simply an 
editorial change in response to a comment that SRBC received pointing 
to the possible confusion of retaining the same numbering system for 
the revised regulations. Comments received on the proposed rule making 
referred to the numbering system as published, namely Parts 803, 804 
and 805, and comments and responses set forth below follow that same 
construction, even though now superseded by Parts 806, 807 and 808, 
respectively.

General Comments

    Comment: Revisions will strengthen and streamline SRBC project 
review regulations.
    Response: The Commission agrees that the revisions will strengthen 
and streamline its regulatory program.
    Comment: SRBC proposed regulations should more strongly emphasize 
the importance of economic development in its statement of purposes and 
in the criteria on which an approval will be granted or denied. SRBC 
should attempt to more carefully balance the economic benefits of a 
project versus other interests such as the environment. Tools should be 
developed for analyzing the ``harms'' of a project versus its 
``benefits.'' If there are only minor environmental impacts and great 
economic benefits, projects should be approved.
    Response: The Commission believes that there are already sufficient 
references to the purposes of economic development in both the 
Susquehanna River Basin Compact (the ``compact'') and the project 
review regulations. The Commission, in its review process, does take 
into consideration the economic development aspects of a project and 
works with project sponsors to help them use water resources in a way 
that will enhance economic growth while avoiding conflicts with other 
users..
    Comment: SRBC should explore the use of free market tools such as 
credits and trading for compliance with its regulations.
    Response: The Commission considers that tools such as credits and 
trading for compliance with regulations are probably more applicable to 
water quality regulations than to water quantity regulations of the 
type administered by the Commission. Nevertheless, an element of free 
market tools is already incorporated in the proposed regulation Section 
803.22 (``Standards for consumptive uses of water''), in that project 
sponsors are allowed a wide choice of mitigation methods, including the 
free market acquisition of water for flow augmentation.
    Comment: In several instances, the Commission is writing authority 
into the regulations that does not exist under the compact. For 
example, Article 11 of the compact pertaining to protected areas is the 
only section that mentions any authority for approval of withdrawals. 
Also, there is no compact authority for other items in the regulations 
such as cease and desist orders and the issuance of subpoenas. Many 
other examples are cited.
    Response: This comment reads the terms of the compact far too 
narrowly and fails to consider other broad grants of power given to the 
Commission to manage the river basin's water resources. For example, 
Section 3.5(4) of the compact states that the Commission ``shall assume 
jurisdiction in any matter affecting water resources whenever it 
determines * * * that the effectuation of the comprehensive plan or the 
implementation of the compact so requires.'' Also, Section 3.4(9) 
states that the Commission ``may have and exercise all powers necessary 
or convenient to carry out its express powers and other powers which 
reasonably may be implied therefrom.'' Finally, Section 3.10(2) of the 
compact makes it clear that the Commission's power to approve projects 
is not limited.
    Comment: SRBC has seemingly unlimited authority to arbitrarily 
impose enforcement action and prescribe remedies, and is not 
responsible or accountable to its basin-constituent population or 
economic interests.
    Response: Like any other government agency, the Commission does not 
operate without limits imposed by the compact, the Constitution, and 
laws of the United States. Also, the Commission is directly responsible 
to its member

[[Page 78571]]

jurisdictions, each of which is represented on the Commission.
    Comment: The proposed regulations should have been presented in a 
redline/black-line format that shows changes along side of current 
regulations. Old regulation sections from which regulations were moved 
or deleted should have been ``reserved'' instead of reused with new 
regulatory material because existing policies that refer to these same 
sections will no longer be accurate and could lead to confusion among 
those persons reviewing those policies.
    Response: These revised regulations represent a complex overhaul of 
the current Commission regulations that involved the wholesale 
reorganization of the existing sections, the extensive revision of 
existing sections, and the addition of whole new sections. Such changes 
cannot be effectively placed in redline/black-line, side-by-side format 
without creating even more confusion for a reviewer attempting to 
review the disjointed mixture of moving text, additions, and deletions. 
It was therefore decided that the proposed revisions would be presented 
as an entirely new package of regulations and that the major changes 
would be described section by section in the preamble of the proposed 
rulemaking action. Most policies were incorporated into the body of the 
regulations, which will provide clarity for the regulated community and 
others. References to sections of the regulations that are no longer 
accurate will be revised accordingly. Also, with regard to 
``reserving'' old sections of the regulations, the Commission has 
decided that, as part of its final rulemaking action, it will ``remove 
and reserve'' Parts 803, 804 and 805 and replace those Parts 
respectively with new Parts 806, 807 and 808. This is being done in 
accordance with Federal Register guidelines. All references in this 
Comment and Response document will reference section numbers as 
originally proposed (i.e., Parts 803, 804, and 805).
    Comment: The new policies, procedures, and regulations implemented 
by the Commission over the last six years have already imposed 
significant administrative burdens on the regulated community. Some in 
the regulated community are now concerned that these new regulations 
will impose even more burdens that will adversely affect the economic 
vitality of the basin and drive investors to basins with a friendlier 
regulatory environment.
    Response: The Commission acknowledges that compliance with 
Commission regulations does place certain short-term administrative and 
financial obligations upon the regulated community. However, the long-
term benefits of Commission management and protection of a critical 
resource must also be considered. Project sponsors and other water 
users receive certain protections related to their water use that 
extend far beyond the protections afforded by the common law. 
Furthermore, the incorporation of policies and overall refinement of 
the regulations are intended to foster sustainable use of the resource 
over the term of an approval, even through times of drought. As such, 
some of the rigor complained about affords protection to existing uses, 
including economic uses, and allows for responsible economic 
development in the basin.
    Comment: SRBC should establish a more integrated project approval 
process that directly considers the impacts of a project in terms of 
both water quantity and quality, and facilitates implementation of 
statewide water quality programs and mandates, including the Chesapeake 
Bay Tributary Strategies program, the anti-degradation program and the 
TMDL program.
    Response: The member jurisdictions continue to maintain primary 
jurisdiction for regulating water quality pursuant to federal 
regulations under the Clean Water Act. In order to avoid duplication, 
the Commission focuses its review on water quantity while considering 
the impacts of a project on water quality, primarily through 
integrated, extensive coordination with agencies of its member 
jurisdictions.
    Comment: SRBC should encourage ``smart growth'' communities that 
cluster development and have less impact on the environment. SRBC, by 
increasing regulatory thresholds, eliminating transferability of 
approvals, shortening amortization times and generally creating 
uncertainty about future water rights, would seem to promote sprawl by 
encouraging large lot development with individual wells to avoid SRBC 
regulation.
    Response: The Commission rejects the notion that this set of 
revised regulations will somehow discourage clustered development and 
create uncertainty about future water rights. If anything, these 
strengthened regulations improve the Commission's ability to 
effectively manage the water resources of the basin, and will reinforce 
certainty about future water supplies by assuring users that they are 
drawing on reliable sources of water that will not be subject to 
conflict or interference with other users. It also acknowledges that 
land use decisions are made at the local level in all of its member 
jurisdictions.

Comments by Section, Part 803

Section 803.1 Scope

    Comment: Decisions made by the Commission should reference the 
section of the comprehensive plan that is relied upon.
    Response: Docket approvals presently do reference the project's 
compliance with the terms of the comprehensive plan, but a reference to 
a single section of the comprehensive plan would be too limiting in 
most cases.

Section 803.2 Purposes

    Comment: The reference to economic development should be 
strengthened by stating that it is a purpose of the regulations to 
promote economic development and financial investment. It was further 
suggested that the purposes section should acknowledge the water-
related dependency of many large and small commercial, industrial, and 
mining industries in the basin. Finally, the words ``and control'' 
should be deleted from Section 803.2(a)(2).
    Response: Again, the Commission feels that the existing reference 
to economic development in this section is sufficient. The Commission 
also promotes economic stability and certainty by protecting the 
sources of water that all such activities depend on for their use and 
development. The Commission protects more than just the environment; 
the Commission heads off conflicts between users and helps users 
maintain reliable sources of water. The word ``control'' comes directly 
from the purposes section of the Susquehanna River Basin Compact and 
cannot be removed or deleted.

Section 803.3 Definitions

    Comment: Revise the ``groundwater'' definition to indicate that 
``groundwater * * * includes that water contained in quarries, pits and 
underground mines not originating directly from surface water inflow 
(runoff).'' Also add that the term groundwater * * * ``includes water 
derived from a spring by pumping or other means of drainage which 
reduces or eliminates the surface flow.''
    Response: The definition has been modified to include ``or other 
means of drainage.'' The Commission does not consider the addition of 
the other suggested wording to be necessary.
    Comment: The last sentence in the ``groundwater'' definition is 
confusing and, when read in conjunction with the ``surface water'' 
definition, may exclude ground or surface water that is intended to be 
included.

[[Page 78572]]

    Response: Agreed. Additional language contained in the current 
definition has been reinserted to clarify the definition.
    Comment: The ``surface water'' definition uses the term ``surface 
of the earth,'' while the ``groundwater'' definition uses the term 
``surface of the ground.''
    Response: Agreed. The term has been changed to ``surface of the 
ground.''
    Comment: There is a need to define the term ``undertake'' to make 
clear what constitutes the commencement of a project requiring approval 
under Section 803.4, and, to insure that mere site preparation such as 
clearing and grubbing are not included under the definition, a 
definition of ``construction'' should also be included.
    Response: Agreed. New definitions have been included for the term 
``undertake'' and for the term ``construction.'' The definition of 
construction insures that mere site preparation activity will not be 
included under the definition of ``undertake''. Combined, these 
definitions clarify what activity is subject to prior review and 
approval.
    Comment: Revise the ``project'' definition because it is confusing 
and ambiguous.
    Response: This definition utilizes wording taken directly from the 
Susquehanna River Basin Compact.
    Comment: Revise the ``pre-compact consumptive use'' definition by 
adding the following words after the date ``January 23, 1971'': 
``established on the basis of credible documentation.''
    Response: The Commission does not consider the suggested language 
to be necessary. All such determinations are already made on the basis 
of credible documentation evaluated by Commission staff.
    Comment: Revise the ``water resources'' definition to remove the 
term ``and related natural resources'' because it is unclear what these 
``related natural resources'' are.
    Response: This definition utilizes wording taken directly from the 
Susquehanna River Basin Compact.
    Comment: Restore the use of the words ``for use'' in the 
``withdrawal'' definition.
    Response: The Commission agrees to restore the words ``for use in 
the basin.''

Section 803.4 Projects Requiring Review and Approval

    Comment: The proposal to require a new review and approval by the 
Commission after a change of ownership of a project will substantially 
complicate and hinder the transfer of projects and therefore reduce the 
attractiveness of investments in projects in the basin. Frequent 
corporate changes, reorganizations, and mergers are common in the 
energy industry today. Requiring a new docket application for each such 
event would be administratively unwieldy, reduce predictability, and 
will add unnecessary risk for anyone willing to sponsor a project.
    Comment: Requiring approvals upon change of ownership of a project 
may also discourage water companies from taking over smaller, 
inadequate systems due to the uncertainties created regarding the new 
quantities of water that will be available under a reissued approval. 
Furthermore, there does not appear to be a need to require that full 
project reviews be performed when there is a change of ownership of a 
project unless there is a change in conditions that really warrants 
such a full review.
    Comment: The Commission should consider some way of preliminarily 
evaluating whether there has been such a change before requiring 
submission of a new application by transferees or simply reopening the 
docket under its reopening authority. Also, the Commission may want to 
focus on the ability of a transferee to comply with the existing 
approval. Yet another suggestion is for the Commission to require the 
submission of a notice of a change of ownership prior to the transfer, 
together with a transfer fee. This would enable the Commission to stay 
fully informed about which entities hold approvals, facilitate 
enforcement of any limitations or conditions, and offset the 
Commission's processing and administrative costs.
    Response: The Commission has added new paragraph (b) that lists 
categories of projects that are exempt from the requirement for 
Commission approval upon a change of ownership. These exemptions were 
originally contained in the ``change of ownership'' definition and have 
been relocated to this section. The Commission has also added new 
paragraph (c) that allows projects not otherwise exempt under paragraph 
(b), to be undertaken by a new project sponsor (the transferee) upon a 
change of ownership pending action by the Commission on an application 
submitted by such new project sponsor requesting review and approval of 
the project. Both paragraphs (b) and (c) relate to projects that did 
not require Commission approval prior to January 1, 2007.
    Comment: New owners should be required to seek approval of their 
water consumption and have full accountability for compliance with the 
terms for approval.
    Response: Subject to the exceptions noted in our response above, 
the Commission agrees.
    Comment: The Commission should not end the grandfathering of 
consumptive uses existing prior to January 23, 1971. The Commission has 
not provided a good reason to end this practice that has been a part of 
the Commission's regulations since their inception, and which project 
sponsors have come to rely on.
    Comment: The intention of grandfathering is to protect the 
expectations of the person, but not the project. The proposed 
limitation on grandfathering does not affect the reasonable 
expectations of any person who is the current owner. Ending 
grandfathering assures fair implementation of the regulations. 
Exemptions provided to ag and family transfers should be continued 
indefinitely.
    Response: The rationale for gradually retiring grandfathered 
benefits upon the transfer of ownership of a project is that, with few 
exceptions, such portions of the basin's water resources should not be 
allowed to continue indefinitely into the future unmanaged. Under the 
compact, the Commission is responsible for the comprehensive management 
of all of the basin's resources. While it was reasonable to allow those 
who possess grandfathered benefits to continue their use of them, the 
unfettered transfer of them to subsequent purchasers effectively 
creates a situation of prior appropriation.
    Comment: The federal reservations to the Susquehanna River Basin 
Compact specifically prohibit the Commission from charging for pre-
compact uses of water under Section 3.9 of the compact. Section 3.9 
only allows the Commission to charge for use of its facilities or its 
services. Waters consumptively used are not a product of the Commission 
facilities or services, but are produced by the streams and rivers 
owned by the individual states. There is no basis for charging these 
projects a fee. Finally, grandfathered amounts encourage water 
conservation.
    Response: The fees paid by consumptive users are not made under the 
authority of Section 3.9 of the compact and are therefore not subject 
to the federal reservations regarding charges under Section 3.9 of the 
compact. Instead, these fees are just one of several means of 
compliance with the consumptive use regulation that a project sponsor 
can employ. The Commission places the proceeds of such charges into a 
special water

[[Page 78573]]

management fund where they are used to purchase storage for release 
during low flow and to implement other measures to mitigate the effects 
of consumptive water use. Project sponsors are free to propose other 
means of mitigation.
    Comment: Section 803.4(a)(4) requiring approval of any consumptive 
use that adversely affects purposes outlined in Section 803.2 is overly 
broad and too vague to effectuate compliance because it provides no 
quantitative or qualitative benchmarks.
    Response: Agreed that this paragraph may be overly broad in scope. 
This paragraph has therefore been stricken.
    Comment: In (a) Consumptive use of water, and (b) Withdrawals, 
change the reference to Section 803.12 to Section 803.13.
    Response: Agreed. This cross-reference was incorrect and has been 
changed.
    Comment: The proposal to regulate combined surface and groundwater 
withdrawals of 100,000 gpd or greater brings more withdrawals under 
review and approval, and better enables the Commission to ensure that 
substantial withdrawals do not compromise basin water resources.
    Response: The Commission strongly agrees.
    Comment: Combining groundwater and surface water to reach the 
withdrawal threshold of 100,000 gpd opens the regulatory process to 
include both when only one may be increased. Approval thresholds should 
remain separate.
    Response: The Commission strongly believes that the hydrologic link 
between surface and groundwater justifies combining surface and 
groundwater withdrawals under one regulation that can consider and 
manage their mutual impacts. This conforms to the comprehensive 
management principles set forth in the compact.
    Comment: The combined surface and groundwater requirement will 
force applicants to file two applications and pay two application fees.
    Response: The proposed regulation does not have the effect 
referenced in the comment. If finally adopted, the Commission intends 
to institute a new application system for withdrawals and intends to 
modify its fee schedule to accommodate combined withdrawals.
    Comment: The Commission should exempt the first 20,000 gallons per 
day (gpd) of an into-basin diversion as it has exempted the first 
20,000 gpd of an out-of-basin diversion.
    Response: The Commission does not agree that into-basin diversions 
should also be exempted up to 20,000 gpd. Regardless of quantity, the 
Commission wishes to insure that only water of good quality or properly 
treated water is being diverted into the Susquehanna River Basin. 
Rather than grant a blank exemption, the Commission will consider the 
possibility of a future ``administrative agreement'' or other informal 
arrangement with member states to accept their review and approval of a 
discharge into the basin (diversion) as an approval by the Commission.
    Comment: Diversions should only be approved when the applicant 
demonstrates the clear need and a lack of alternatives.
    Response: The Commission feels that the new regulation, which 
incorporates the Commission's out-of-basin diversion policy, adequately 
covers these criteria with respect to out-of-basin diversions.
    Comment: There are no substantive criteria in 803.4(g) to establish 
a threshold as to when ``other projects'' may be required to submit an 
application.
    Response: This paragraph is in conformance with Section 3.10(3) of 
the compact that grants the Commission and the member jurisdictions the 
broad authority to identify other projects that require Commission 
approval.

Section 803.5 Projects That May Require Review and Approval

    Comment: With respect to (a), terms used such as ``affect 
interstate water quality or interstate waters'' and ``significant 
effect'' are too vague and do not sufficiently establish a quantitative 
standard. There is no requirement to identify which part of the 
comprehensive plan is adversely affected and therefore there is no way 
for an applicant to determine this.
    Response: This is language that simply restates and is consistent 
with the language of the compact, Section 3.10. A project sponsor whose 
project affects the comprehensive plan would be informed about which 
part of the plan is so affected when it is notified in writing by the 
Executive Director under Section 803.4 (g).
    Comment: With respect to (b), there should be a ``pre-determination 
notice'' procedure that would afford a project sponsor the opportunity 
to supplement information, discussion, and technical interaction before 
a determination is made by the Executive Director.
    Response: If the Executive Director is called upon to make a 
determination, he/she will notify the project sponsor to submit such 
information prior to a determination. This will be part of the due 
process automatically afforded a project sponsor and there is no need 
to provide for it separately in the regulation.

Section 803.6 Transferability of Project Approvals

    Comment: Support expressed for limited classes of transfers.
    Comment: The proposed language should be eliminated for the same 
reasons given under the comments submitted on Section 803.4. regarding 
``change of ownership'' and the existing rule regarding transfers 
should be retained. Essentially, restrictions on the transfer of 
Commission approvals create the same burdens on the regulated community 
as described in the comments on Section 803.4 above.
    Response: This section has been extensively revised to now 
generally permit the transfer of project approvals. All transfers would 
require advance notification and certification to comply with all terms 
and conditions of the transferred approval. Transfers qualifying under 
new paragraph (b) can be made automatically without further Commission 
action. Transfers qualifying under new paragraph (c) can be made 
conditionally with a subsequent application to the Commission within 90 
days from the transfer requesting review and approval of previously 
unapproved aspect of the project. Transfers qualifying under new 
paragraph (d) can also be made conditionally with a subsequent 
application to the Commission within 90 days from the transfer 
requesting review and approval of the entire project.

Section 803.7 Concurrent Project Review by Member Jurisdictions

    Comment: Insert the words ``to avoid delays'' after the words ``to 
avoid duplication of work.'' All reviews should be carried on in 
parallel with other agencies so as to avoid any delays in the review 
process.
    Response: The suggested language is seen as unnecessary since it is 
the express purpose of the section.
    Comment: Substitute the words ``appropriate administrative 
agreements'' or ``informal arrangements'' for ``agreements of 
understanding'' and ``agreements'' to be consistent with Section 804.3.
    Response: Agreed.

Section 803.8 Waiver/Modification

    Comment: The ``modify'' portion of this section gives the 
Commission too much discretion to actually change the requirements of a 
regulation that has already been promulgated. Therefore, the references 
to ``modification'' and

[[Page 78574]]

``modify'' in this section should be deleted.
    Response: This section has been a part of the Commission's 
regulations since the first omnibus rulemaking package was adopted in 
1995. It is generally used to relieve project sponsors of unnecessary 
requirements, rather than to place additional requirements upon a 
project sponsor. The Commission expects that this type of use of the 
``waiver'' section will continue, although it reserves the right to use 
such discretion in appropriate circumstances.

Section 803.12 Constant-Rate Aquifer Testing

    Comment: There should be an introductory paragraph that includes a 
statement of purpose.
    Response: The Commission has added additional wording that explains 
the purpose of constant-rate aquifer testing.
    Comment: This section should state that constant-rate aquifer 
testing plans shall be prepared by a qualified and licensed 
professional geologist.
    Response: The Commission defers to state law on this matter. 
Geologists are not formally licensed in New York or Maryland.
    Comment: This section should state that constant-rate aquifer 
testing plans shall follow published Commission guidelines which shall 
be consistent with current industrial standards.
    Comment: Once testing is complete, the Commission should not be 
able to require additional testing or monitoring unless the purposes of 
the first testing have not been met. The specific circumstances 
requiring additional testing should be set forth.
    Response: These comments are addressed in the Commission's revised 
Aquifer Testing Guidance. Testing is conducted to provide a sound 
scientific basis for the Commission's decision regarding a project. 
Additional testing and monitoring is required to confirm assumptions in 
the interpretation of data or to verify system performance.
    Comment: Paragraph (d) allows the Commission to impose arbitrary 
demands for additional testing.
    Response: As is the case with every governmental agency, the 
Commission may not constitutionally impose arbitrary requirements.
    Comment: This section deserves support.
    Response: Agreed.

Section 803.13 Submission of Application

    Comment: Add a new subsection that describes the deadlines to which 
the Commission would be obliged with respect to: (1) Administrative 
completeness; (2) technical reviews of applications; (3) review of 
supplemental submissions required by the Commission; and (4) actions to 
be taken by the Commission.
    Response: The Commission feels that it would be more appropriate to 
address this comment in a set of accompanying guidelines rather than in 
the regulation itself.
    Comment: In paragraph (b), how will a transferee of a project know 
that it is to comply with all of the requirements to certify an 
intention to comply and assume all associated obligations?
    Response: This provision has been relocated to Sec. 806.6. The 
Commission will make available appropriate notification and 
certification forms to assist transferees in complying with the 
requirements.
    Comment: In paragraph (c), the Commission should impose a time 
limit on itself to determine the completeness of an application.
    Response: The provision has been deleted.

Section 803.14 Contents of Application

    Comment: Applications by project sponsors should demonstrate the 
consistency of projects with locally adopted comprehensive plans and 
with state water plans.
    Response: The notice of application procedure, which covers 
notification to local municipalities and county planning agencies, 
provides an ample opportunity for those entities to submit comments to 
the Commission on the consistency of the projects with local plans. The 
Commission coordinates with state agencies on each project application, 
providing the states with an opportunity to comment on the consistency 
of the projects with any of their water plans.
    Comment: Some items that are now required to be provided in project 
applications are made discretionary on the part of the Commission in 
the new regulations. Many of these items provide information relevant 
to whether a proposed project impacts water resources of the basin. 
These should continue to be mandated.
    Response: The regulation has been restructured to mandate certain 
information that is uniformly applicable to all projects. The 
informational requirements listed as discretionary are also important, 
but not all are necessary for all projects. The Commission believes 
some discretion is needed to tailor informational needs on a case-by-
case basis.
    Comment: Applications should not be deemed incomplete if they lack 
a plan for avoiding or mitigating consumptive use because large volume 
consumptive use may be a legitimate purpose. Instead preface with 
statement ``As may be appropriate, depending upon the nature of the 
project, plans for avoiding * * * (etc)''.
    Response: Mitigation is one of the fundamental purposes of the 
consumptive use regulation. It is essential that a project sponsor 
develop a plan for mitigating its consumptive use. Development of a 
plan does not in any way imply that the use is not legitimate.
    Comment: Two additional subsections should be added to allow the 
applicant to provide information regarding: (1) The benefits of the 
project; and (2) plans to mitigate adverse impacts of potential adverse 
effects.
    Response: The project sponsor may, as it chooses, submit this 
information to the Commission. There is no need to make it a required 
submission.
    Comment: Add a new item (xi) Evidence of compliance with all 
registration requirements of the Commission and the appropriate member 
jurisdictions.
    Response: Agreed.
    Comment: In (a)(2)(i), the project location should be determined by 
gps accurate to 10 meters.
    Response: Agreed.
    Comment: Paragraph (a)(2)(v) would seem to allow a requirement for 
a constant-rate aquifer test even if the application is for surface 
water, and it is the surface water application that causes the combined 
request to exceed 100,000 gpd.
    Response: Commission staff will take into account such situations 
and, as appropriate, recommend a waiver of the constant-rate aquifer 
test.
    Comment: With respect to paragraph (a)(3)(ii), is a PNDI being 
required?
    Response: The Commission currently conducts a review for threatened 
or endangered species and their habitats. Under the new regulations, 
the project sponsor will submit this information with the application.
    Comment: With respect to (b)(1)(ii), under what authority can the 
Commission require information on the ability of a project sponsor to 
fund a project?
    Response: This is a necessary and convenient power under Section 
3.4 (8) to reasonably ascertain the financial ability of the project 
sponsor to carry out a project in a manner to be approved by the 
Commission, including any conditions that the Commission may impose. 
This authority is only exercised in very limited situations.

[[Page 78575]]

    Comment: With respect to (b)(1)(iii), relating to the 
identification of alternatives, what is a reasonable alternative? Will 
there be any guidance in this regard?
    Response: Reasonable in this context refers to alternatives that 
may be appropriate for a particular situation. Commission staff will 
provide guidance and consultation as needed.
    Comment: With respect to (b)(1)(iv), will the Commission maintain 
an inventory of anticipated uses?
    Response: It is not necessary for the Commission to maintain such 
an inventory. Existing and anticipated uses should be identifiable by 
project sponsors or their consultants in each situation. For example, 
if the project is proposed for an area that has experienced rapid 
growth, anticipated uses should be evident, or reasonably discernable.
    Comment: With respect to paragraph (3), it is much too open ended, 
allowing the Commission to ask for anything it deems necessary without 
limit.
    Response: Again, as in any action it takes as a government agency, 
the Commission must act reasonably. Under constitutional law 
principles, there must be a rational relationship between what 
regulatory actions the Commission takes and a legitimate regulatory 
objective.
    Comment: The regulations should continue the requirement for 
submission of comprehensive information about potential impacts of 
withdrawals and availability of alternatives, rather than allow its 
submission to be discretionary on the part of the Commission.
    Response: Again, the regulation has been restructured to mandate 
certain information that is uniformly applicable to all projects. The 
informational requirements listed as discretionary are also important, 
but not all are necessary for all projects. The Commission believes 
some discretion is needed to tailor informational needs on a case-by-
case basis.
    Comment: There should be compatibility with regional and state Act 
220 plans.
    Response: The Commission routinely coordinates its approvals with 
its member jurisdictions. The project sponsor is required to give 
notice to the municipality and county planning agency of its 
application for approval, thereby providing an opportunity for local 
and regional interests to comment on the compatibility of projects.

Section 803.16 Completeness of Application

    Comment: Add a statement providing that the Commission will provide 
the project sponsor with either a formal notice of administrative 
completeness, or a deficiency notice within a prescribed time.
    Response: The Commission currently provides deficiency notices, 
when appropriate, as reviews are undertaken.

Section 803.21 General Standards

    Comment: Omit the sentence containing the subjective terms 
``detrimental'' and ``proper.''
    Response: The wording comes directly from the compact.
    Comment: The words ``modify and approve as modified'' should be 
rephrased to ``With the applicant's consent, the Commission may modify 
* * *'' Only the applicant should have the right to modify a project, 
not the Commission.
    Response: Again, the wording comes directly from the compact. Also, 
this sentence is not meant to imply that the Commission would 
unilaterally modify a project without prior notice. It may condition 
its approval on the project sponsor making a modification or 
incorporating a condition that would help meet a Commission regulatory 
objective, but the Commission would not unilaterally modify a project 
without prior notice and an opportunity to be heard.
    Comment: Add a new subsection that requires that Commission staff 
provide a draft docket to project sponsors at least 10 days in advance 
of Commission action on that docket. If the staff is recommending 
modifications, they should be required to provide the reasons for the 
recommended modifications in writing with quantitative analysis.
    Response: The Commission strives to provide project sponsors with a 
draft docket as far in advance of final Commission action as possible. 
However, due to fluctuations in the number and complexity of dockets 
before the Commission at any particular meeting, a guarantee of ten 
(10) days advance review is not possible in all cases.
    Comment: The Commission should not suspend review or revoke 
approval due to the disapproval of another government agency, 
especially when what some other agency is deciding has little or 
nothing to do with the water resources of the project. Furthermore, 
this provision seems to limit the Commission's power to preempt 
municipal regulations that, at least under Pennsylvania Law, illegally 
attempts to regulate water withdrawals. Instead of suspending review, 
the Commission should proceed expeditiously with its review and 
approval process and simply condition its approval on the applicant 
obtaining and retaining all other applicable approvals.
    Response: The Commission will not suspend its review or approval of 
a project in response to the illegal exercise of authority by another 
governmental jurisdiction. However, it makes sense to coordinate 
Commission review and approval actions with other governmental 
jurisdictions. By the same token, it makes little sense for the 
Commission to expend staff resources on the review of projects that 
have been rejected by other governmental jurisdictions and cannot, 
therefore, be implemented.
    Comment: This section should be supported because it allows the 
Commission to streamline its decision making with other government 
entities involved in project review.
    Response: Agreed. See response to prior comment.
    Comment: Should include language acknowledging the importance of 
economic interests of the applicant, community, region, etc.
    Response: See above responses regarding purposes of the 
regulations.

Section 803.22 Standards for Consumptive Uses of Water

    Comment: Eliminating the Q7-10 trigger flow for providing makeup 
during periods of low flow leaves too much discretion to SRBC and 
leaves no guidance to project sponsors to determine risk and costs.
    Response: The elimination of the Q7-10 trigger flow criterion 
effectively changes little because few consumptive use projects 
approved by the Commission are now tied to this criterion. Most project 
sponsors opt for payment of the consumptive use fee as a means of 
compliance rather than release storage or shut down during low flow 
periods. When the Commission does set a low flow criterion, it does so 
on a case-by-case basis using modern assessment techniques that allow 
the Commission to more accurately assess the particular needs of the 
affected stream. The Commission establishes passby flow requirements 
the same way. In cases involving a consumptive use as well as a 
withdrawal, the established passby flow serves as the low flow 
criterion for a project. In the rare event that a flow criterion is set 
for a particular project, it will be done only after the project 
sponsor is given the

[[Page 78576]]

opportunity at a public hearing to submit information and make relevant 
arguments regarding the establishment of a flow criterion for its 
project. The criterion will not be established arbitrarily and without 
notice and opportunity for response.
    Comment: ``Sole Discretion'' language too open ended and must 
incorporate reasonableness.
    Response: See responses above to allegation that the Commission may 
act arbitrarily under these proposed regulations.
    Comment: Support expressed for the approval by rule procedures as a 
means of streamlining the approval process.
    Response: The Commission agrees.
    Comment: Section 803.22 (b)(4) is inconsistent with the other 
alternatives provided under (b).
    Response: Agreed. It has been made a separate item.
    Comment: With respect to (b)(1)(ii), an explanation should be 
included as to why a project may be required to reduce its withdrawal 
to an amount greater than its consumptive use.
    Response: Agreed. The words ``or greater than'' have been removed.
    Comment: Eliminate mitigation requirement.
    Response: Mitigation of consumptive use is a fundamental purpose of 
the consumptive use regulation and an element of the regulation that 
comes directly from the Commission's comprehensive plan. Eliminating 
mitigation requirements essentially would ignore the provisions of the 
comprehensive plan.
    Comment: On the approval by rule provision, the Commission should 
provide for a 30- to 60-day notification instead of 90 days.
    Response: The Commission feels that the 90-day notification is 
appropriate for qualified projects.

Section 803.23 Standards for Water Withdrawals

    Comment: SRBC withdrawal regulations relating to the protection of 
existing users should make clear that inefficient existing sources of 
water may not necessarily be protected.
    Response: The Commission does not wish to imply that it will 
protect existing users under all circumstances, thus in effect granting 
a prior appropriation of water, which is prohibited under the compact.
    Comment: Section 803.23(b)--Add the word ``significant'' before the 
words adverse impacts.
    Response: Agreed. This will remove the implication that a de 
minimis adverse impact will form the basis for some limitation or 
condition.
    Comment: Section 803.23(b)(2)--Add ``Commission may consider and 
balance.''
    Response: As it has always done, the Commission will carefully 
weigh the necessity of any requirement or limitation that it imposes 
versus the benefit to be achieved.
    Comment: Section 803.23(b), that allows the Commission to deny, 
limit or condition an approval to insure no adverse impact, incorrectly 
suggests that lowering of groundwater levels and stream flow levels is 
an adverse impact. These may be perfectly legitimate occurrences in 
connection with use of an aquifer.
    Response: The Commission has added ``significant'' before the words 
``adverse impact'' to remove the implication that a de minimis adverse 
impact will form the basis for some limitation or condition.
    Comment: In Section 803.23(b), the Commission should not accord 
protection status to intermittent streams, as such protection would 
unduly restrict the use and potential of aquifers that can be used as 
groundwater reservoirs to provide economically important water 
supplies.
    Response: The Commission believes that headwaters must be carefully 
managed to insure a proper balance of sustainable development, 
responsible use, and conservation. Intermittent streams are not 
afforded special protection; however, Commission staff does evaluate 
for potential adverse impacts. The withdrawal of large quantities of 
groundwater from small headwater basins can dewater springs and 
wetlands, and reduce the groundwater contribution (base flow) to 
headwater streams. This can change the previous intermittent reaches to 
ephemeral reaches and the uppermost perennial reaches to intermittent 
reaches. While the loss of perennial stream length is generally a small 
fraction of the entire stream, it often represents the most pristine 
portion of the watershed with respect to water quality and habitat.
    Comment: The Commission needs to define the term ``low flow.'' The 
most logical definition is the Q7-10 low flow. To protect stream flows 
at any higher level would unduly restrict the use and potential of 
aquifers that can be used as reservoirs for economically important 
activities.
    Response: The Commission sets low flow criteria on a case-by-case 
basis using modern assessment techniques to accurately assess the 
particular needs of the affected stream. The Commission will carefully 
weigh any limitation it imposes versus the benefit to be achieved.
    Comment: The Commission should provide its regulatory requirements 
concerning the establishment of passby standards in Section 803.23. The 
current practice of setting a passby standard at 20 percent of average 
daily flow is not a fair, reasonable and appropriate approach to 
balancing the need to allow a beneficial stream withdrawal with the 
need to protect the stream ecology.
    Response: The Commission has incorporated passby standards in 
guidelines that it makes available to all applicants. The Commission 
sets a low flow criterion based on the particular needs of the stream, 
the best available science, and on a case-by-case basis. Instream needs 
are assessed using standard methodologies and can always be refined by 
local studies. Incorporating the standards in guidance enables the 
Commission to periodically update those standards as new science 
emerges.
    Comment: The Commission should define terms such as ``adverse 
impact, aquatic habitat and water quality degradation.''
    Response: The latter two items, as used in Section 803.23, are 
listed only as possible indicators of adverse impacts that the 
Commission may consider in each individual case or circumstance. It is 
not necessary or desirable to place specific weight or limiting 
criteria on factors that are merely indicators of possible adverse 
impacts. The term ``adverse impacts'' or ``adverse effect'' comes 
directly from the language of Section 3.10 of the Susquehanna River 
Basin Compact granting authority to the Commission to review and 
approve projects that may cause an adverse effect.
    Comment: In 803.23(b)(3), make it clear that the applicant shall 
have the right to propose mitigation measures to offset potential 
adverse impacts of the proposed project.
    Response: The Commission encourages a project sponsor to propose 
mitigation for any potential adverse impacts in its application(s). 
Further, the Commission carries on an active dialogue with project 
sponsors during the review process, and the project sponsor is free at 
that time to propose any reasonable form of mitigation.
    Comment: A decision to deny, modify or conditionally approve a 
withdrawal project should be accompanied by a technical evaluation that 
is provided to the project sponsor in a timely manner to allow sponsor 
to rebut the conclusions or revise its application to address concerns 
raised by the Commission.

[[Page 78577]]

    Response: As stated above, the Commission carries on an active 
dialogue with the project sponsor during the review process that allows 
for an exchange of information on staff conclusions and concerns, and 
how such concerns may be resolved.
    Comment: The Commission should consider a new MOU with DEP Mining 
to avoid the ``double jeopardy'' concern.
    Response: The proposed Section 803.7 provides for administrative 
agreements or other cooperative arrangements with agencies of the 
member jurisdictions. The Commission anticipates that existing 
agreements will be reconsidered following adoption of the new 
regulations.

Section 803.24 Standards for Diversions

    Comment: This section should be supported or even strengthened to 
explicitly state that an applicant for a diversion must demonstrate 
``by clear and convincing evidence'' a need for the diversion.
    Response: The Commission believes that the language proposed 
ensures that the project sponsor will be required to adequately 
demonstrate a need for the diversion without the formal inclusion of an 
evidentiary standard that may be subject to further construction or 
interpretation.

Section 803.25 Water Conservation Standards

    Comment: AWWA standards should be used for customer meter testing 
under Section 803.25(a)(2). Is the definition for ``flow control 
device'' correct?
    Response: The water conservation standards were taken directly from 
the current regulations. The Commission intends to revisit this section 
in the future and will evaluate the published standards at that time.

Section 803.30 Monitoring

    Comment: The Commission should accept testing and monitoring done 
in accordance with member state standards when the state has a parallel 
or equally stringent procedure.
    Response: The water conservation standards were taken directly from 
the current regulations. The Commission intends to revisit this section 
in the future and will evaluate the published standards at that time.
    Comment: The Commission should consider whether PWS source meters 
should be certified annually, rather than every five years, with a 
possible exception for agriculture.
    Response: The regulations set the minimum standard for all 
projects. The Commission can specify certification more frequently than 
once every five (5) years for source meters of public water suppliers 
if warranted, or as required in other permits.
    Comment: In Section 803.30 (b)(2)(ii), a monitoring loss should be 
reported within five days of such loss, regardless of the length of 
time the loss continues.
    Response: Agreed.
    Comment: The Commission should continue to mandate that project 
sponsors monitor the water quality impacts of their withdrawals to help 
the Commission fulfill the compact purposes of ``stream quality 
control'' and the ``abatement of pollution.''
    Response: The requirement to collect water quality data was 
burdensome for the project sponsor, burdensome for Commission staff to 
review and maintain, and it is generally not used by Commission 
programs because similar data are available from other sources, 
particularly from its member jurisdictions, each of which administers a 
comprehensive water quality program. The Commission reserves the right 
on any given application to require water quality sampling, if water 
quality is an issue.

Section 803.31 Duration of Approvals and Renewals

    Comment: The Commission should not be reducing the duration of 
approvals from 25 years to 15 years. Many water resources projects 
involve large investments of money and many years of planning that are 
not well accommodated by an approval of 15 years. Instead, the 
Commission should rely on its authority to reopen a docket if there is 
a potential problem. The Commission should not have deleted the 
language that appears in the existing regulations allowing the 
Commission ``to modify this duration in consideration of such factors 
as the time needed to amortize a project investment, the time needed to 
secure project financing, the potential risks of interference with an 
existing project, and other equitable factors.''
    Response: The Commission has found that both projects and the water 
resources that serve them are subject to many changes over 25 years 
and, therefore, it is appropriate to review these applications on a 
more frequent basis. The Commission agrees to reinsert the deleted 
language allowing the Commission to modify the standard duration, when 
appropriate, in consideration of the factors enumerated in this 
comment.
    Comment: The time for commencement of a project after approval 
should take into account that some large projects require longer 
permitting periods and longer construction times. Opponents sometimes 
attempt to delay projects using administrative appeals and other 
devices that can prevent a large project from commencement.
    Response: The Commission agrees that there may be circumstances in 
which a longer time frame is needed for undertaking a project. The 
Commission is inserting language that will allow adjustments to this 
time limit on a case-by-case basis.
    Comment: The submission of an application one year in advance for 
the renewal of an approval is too long and unneeded.
    Response: The time was set to afford both the project sponsor and 
Commission staff sufficient time to evaluate changes to the project and 
changes to the resource, and is reasonable considering current review 
times. Having said that, the Commission is nonetheless willing to 
modify the period to six (6) months. As modified, a project sponsor who 
submits a complete application six (6) months in advance, is given the 
benefit of having an existing approval automatically extended until 
such time as the Commission renders a decision on the new application. 
This eliminates the risk of having an approval expire before the 
Commission has an opportunity to act.
    Comment: In (a), the reduction of the duration of approvals to 15 
years is appropriate. In fact, 10 years would be more appropriate.
    Response: The Commission agrees that the reduction of the term to 
15 years is appropriate so that commitment of water to a particular use 
can be reviewed more frequently and any changes in conditions can be 
addressed sooner.
    Comment: In (c), there should be a notification to the state agency 
with jurisdiction over the project, at the time a waiver is applied 
for.
    Response: The Commission routinely coordinates with member 
jurisdictions on such project-related matters.
    Comment: How will the Commission fund the increased workload 
resulting from shorter duration periods?
    Response: The Commission has no special plans for funding any 
increase in workload resulting from a shorter approval term. The member 
jurisdictions who approve the Commission's budget will need to consider 
any such increased workload associated with the completion of the 
Commission's responsibilities under the compact.

[[Page 78578]]

    Comment: With respect to paragraph (d), abandonment should have to 
be proven by the Commission and not inferred. Notice should be provided 
to the project sponsor.
    Response: Under general legal principles, any inference of 
abandonment acted upon by the Commission will have to be supported by 
substantial evidence and appropriate notice and opportunity to be 
heard. There is no need for the wording suggested by this comment.
    Comment: Application fees should be adjusted downward to account 
for shorter durations.
    Response: The main purpose of shortening the term of approvals is 
not to realize more revenues from project review fees. In fact, these 
fees cover no more that half the cost of conducting a review. Project 
reviews conducted on a more frequent basis will actually involve 
increased costs that will more than offset any increased revenues from 
application fees.

Section 803.32 Reopening/Modification

    Comment: In (a), the word ``significant'' should be substituted for 
the word ``substantial'' before the words ``adverse impact.''
    Response: Agreed.
    Comment: In (c), the Commission should retain the discretion to 
require a project sponsor to provide a temporary source of potable 
water at the project sponsor's expense, if interference should occur 
during a pumping test of a source under development.
    Response: Agreed.
    Comment: The language of 803.32(b) is too strong in that it does 
not spell out how to remedy situations where a project sponsor fails to 
comply with a term or condition of its docket approval.
    Response: The remedy will be worked out administratively between 
the Commission and the project sponsor without providing for a specific 
remedy in the regulation.

Section 803.33 Interest on Fees

    Comment: Rate should be established and equally imposed.
    Response: Interest rates change as they are affected by market 
forces and therefore should not be set permanently by regulation. 
Whatever rate is established will be uniformly imposed.

Section 803.34 Emergencies

    Comment: In (b), at the end of the paragraph, delete the word 
``information'' before the colon. Also, in (b)(2), delete the word 
``information'' following the word ``application.''
    Response: Agreed.
    Comment: In (b)(1), replace ``an emergency'' with ``a completed 
emergency'' before the words ``application form.''
    Response: Agreed.
    Comment: In (b)(2)(x), because of the immediate inclusion of an 
application fee may delay submittal of an emergency application, 
provision should be made in the regulation for reduction, waiver, or 
later submittal of an ``appropriate'' fee.
    Response: Agreed; however, this is a change that can be made in the 
SRBC Project Fee Schedule, rather than these regulations.

Comments by Section, Part 804

Section 804.2 Time Limits

    Comment: Registration language strongly supported.
    Response: Agreed.

Section 804.3 Administrative Agreements

    Comment: Add the following: ``In conjunction with such agreements 
or arrangements, the Commission will require submission of all 
necessary registration forms to the member jurisdiction as part of a 
complete application for renewal of an existing project or new or 
expanded agricultural project or as a condition of approval of any 
other new or expanded project.''
    Response: Although not using this suggested language, the 
Commission has revised this section and renamed it ``Administrative 
coordination'' to address this comment.

Comments by Section, Part 805

Section 805.1 Public Hearings

    Comment: Participants to a hearing should be limited to interested 
parties.
    Response: Who is able to participate in a hearing will depend on 
the circumstances and will be controlled by a decision of the presiding 
officer.
    Comment: Notice of hearings should continue to be posted at 
Commission offices.
    Response: Agreed.
    Comment: Why does the Commission need three days notice?
    Response: This is not mandated by the regulation but is more in the 
form of a request to participants. Three days allows the Commission to 
assemble a list of participants and establish an order of call for 
those wishing to provide testimony.

Section 805.2 Administrative Appeals

    Comment: Administrative hearings should be held in the state where 
the project or controversy is located. Also, the Commission should 
appoint an ``impartial'' hearing officer who shall not be a member of 
the Commission or an officer of the Commission. The Commission should 
absorb all hearing costs.
    Response: Wherever practicable, the Commission will conduct such 
hearings in the general vicinity where the project or controversy is 
located. The Commission will also take steps to insure the impartiality 
of the hearing officer. Such steps do not require, however, that the 
Commission automatically disqualify members of the Commission or 
officers of the Commission. Hearing officers only make findings of fact 
and law that serve as recommendations to the Commission. The ultimate 
decision in any matter rests with the Commission. With respect to 
costs, they should be distributed equitably and not assigned 
automatically to any single party. The Commission has included an in 
forma pauperis procedure in Section 805.3 for parties who genuinely 
cannot pay hearing costs and have acted in good faith.
    Comment: Parties should have at least 60 days to file an 
administrative appeal, rather than the 30 days given in proposed 
Section 805.2. Sometimes there is delay in a party learning of a 
Commission decision, effectively reducing the time for appeals.
    Response: The Commission feels that thirty (30) days strikes the 
appropriate balance for having its action open for appeal.

Section 805.3 Hearing on Administrative Appeal

    Comment: Cost of expert consultants should be paid by the 
Commission.
    Response: Again, the presiding officer should be able to weigh the 
equities of assigning costs for a hearing without being bound by a 
specific rule, some of which may be assigned to the Commission.

Section 805.10 Scope of Subpart

    Comment: Regulated entities should be legally obligated to meet the 
terms and conditions for their approvals and SRBC must have the 
authority to ensure that they do.
    Response: The Commission strongly agrees and that is why the 
compliance and enforcement provisions of these regulations have been 
strengthened.

Section 805.12 Investigative Powers

    Comment: The Commission does not have authority from the compact to 
provide for warrantless searches.
    Response: Agreed. This provision will be stricken. The Commission 
will acquire an administrative search

[[Page 78579]]

warrant whenever it is legally required to do so.
    Comment: Strongly supported as necessary for the Commission to 
effectively enforce its regulations.
    Response: The Commission strongly agrees.

Section 805.14 Orders

    Comment: The Commission does not have authority from the compact to 
issue orders.
    Response: As noted in the Commission's response to the general 
comments, the Commission strongly disagrees with this contention. The 
Susquehanna River Basin Compact, P.L. 91-575 provides broad and 
sweeping powers to the Commission to carry out its purposes, including 
under Section 3.4 the power to have and exercise all powers necessary 
or convenient to carry out its express powers and other powers which 
reasonably may be implied therefrom. Also, that same section empowers 
the Commission to adopt, amend, and repeal rules and regulations to 
implement the compact.
    Comment: Strongly supported as necessary for the Commission to 
effectively enforce its regulations.
    Response: The Commission strongly agrees.

Final Rule

List of Subjects in 18 CFR Parts 803, 804, 805, 806, 807 and 808

    Administrative practice and procedure, Water resources.

0
Accordingly, for the reasons set forth in the preamble, under the 
authority of secs. 3.4, 3.5 (5), 3.8, 3.10, and 15.2, Pub. L. 91-575, 
84 Stat. 1509 et seq., Chapter VIII of the Code of Federal Regulations 
is amended as follows:

PARTS 803, 804, AND 805--[REMOVED AND RESERVED]

0
1. Parts 803, 804, and 805 are removed and reserved.

0
2. Part 806 is added to read as follows.

PART 806--REVIEW AND APPROVAL OF PROJECTS

Subpart A--General Provisions
Sec.
806.1 Scope.
806.2 Purposes.
806.3 Definitions.
806.4 Projects requiring review and approval.
806.5 Projects that may require review and approval.
806.6 Transfer of approvals.
806.7 Concurrent project review by member jurisdictions.
806.8 Waiver/modification.
Subpart B--Application Procedure
806.10 Purpose of this subpart.
806.11 Preliminary consultations.
806.12 Constant-rate aquifer testing.
806.13 Submission of application.
806.14 Contents of application.
806.15 Notice of application.
806.16 Completeness of application.
Subpart C--Standards for Review and Approval
806.20 Purpose of this subpart.
806.21 General standards.
806.22 Standards for consumptive uses of water.
806.23 Standards for water withdrawals.
806.24 Standards for diversions.
806.25 Water conservation standards.
Subpart D--Terms and Conditions of Approval
806.30 Monitoring.
806.31 Term of approvals.
806.32 Reopening/modification.
806.33 Interest on fees.
806.34 Emergencies.
806.35 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.  806.1  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 January 1, 2007.
    (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 Commission 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.  806.2  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.  806.22, 806.23 and 806.24 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

[[Page 78580]]

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.  806.3  Definitions.

    For purposes of parts 806, 807 and 808, 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.
    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.
    Construction. To physically initiate assemblage, installation, 
erection or fabrication of any facility involving or intended for the 
withdrawal, conveyance, storage or consumptive use of waters of the 
basin.
    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 or other means of drainage to eliminate the surface 
flow. All other springs are considered to be surface water.
    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 ground, 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.
    Undertake. Except for activities related to site evaluation, the 
initiation of construction or operation of a new or expanded project, 
or the operation of an existing project, that is subject to Commission 
review and approval.
    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 for use within the basin.

[[Page 78581]]

Sec.  806.4  Projects requiring review and approval.

    (a) Except for activities relating to site evaluation or those 
authorized under Sec.  806.34, 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.
    (1) Consumptive use of water. Any consumptive water use project 
described below shall require an application to be submitted in 
accordance with Sec.  806.13, and shall be subject to the standards set 
forth in Sec.  806.22, 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.  806.23. 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.
    (i) Any project initiated on or after January 23, 1971, involving a 
consumptive water use of an average of 20,000 gallons per day (gpd) or 
more in any consecutive 30-day period.
    (ii) 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.
    (iii) With respect to projects that existed prior to January 23, 
1971, any project that increases its consumptive use by an average of 
20,000 gpd or more in any consecutive 30-day period above its pre-
compact consumptive use.
    (iv) Any project, regardless of when initiated, involving a 
consumptive use of an average of 20,000 gpd or more in any 30-day 
period, and undergoing a change of ownership, unless such project 
satisfies the requirements of paragraphs (b) or (c) of this section or 
the existing Commission approval for such project is transferred 
pursuant to Sec.  806.6.
    (2) Withdrawals. Any project described below shall require an 
application to be submitted in accordance with Sec.  806.13, and shall 
be subject to the standards set forth in Sec.  806.23. 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.  806.5, or 18 CFR part 801.
    (i) Any project initiated on or after the applicable dates 
specified in paragraph (a)(2)(iv) below, 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.
    (ii) 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 January 1, 2007.
    (iii) 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.
    (iv) 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.
    (v) Any project, regardless of when initiated, 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, unless such project 
satisfies the requirements of paragraphs (b) or (c) of this section or 
the existing Commission approval for such project is transferred 
pursuant to Sec.  806.6.
    (3) Diversions. The projects described below shall require an 
application to be submitted in accordance with Sec.  806.13, and shall 
be subject to the standards set forth in Sec.  806.24. The project 
sponsors of out-of-basin diversions shall also comply with all 
applicable requirements of this part relating to consumptive uses and 
withdrawals.
    (i) Any project initiated on or after January 23, 1971, involving 
the diversion of water into the basin, or involving a diversion of 
water out of the basin of an average of 20,000 gallons of water per day 
or more in any consecutive 30-day period.
    (ii) With respect to diversions previously approved by the 
Commission, any project that will increase a diversion above the amount 
previously approved.
    (iii) With respect to diversions initiated prior to January 23, 
1971, any project that will increase a diversion into the basin by any 
amount, or increase the diversion of water out of the basin by an 
average of 20,000 gpd or more in any consecutive 30-day period.
    (iv) Any project, regardless of when initiated, involving the 
diversion of water into the basin or 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, 
unless such project satisfies the requirements of paragraphs (b) or (c) 
of this section or the Commission approval for such project is 
transferred pursuant to Sec.  806.6.
    (4) Any project on or crossing the boundary between two member 
states.
    (5) Any project in a member state having a significant effect on 
water resources in another member state.
    (6) 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.
    (7) Any other project so determined by the commissioners or 
Executive Director pursuant to Sec.  806.5 or 18 CFR part 801. Such 
project sponsors shall be notified in writing by the Executive 
Director.
    (b) Any project that did not require Commission approval prior to 
January 1, 2007, and undergoing a change of ownership, shall be exempt 
from the requirements of paragraph (a)(1)(iv), (a)(2)(v) or (a)(3)(iv) 
of this section if it satisfies any of the following categories:
    (1) A corporate reorganization of the following types:
    (i) Where property is transferred to a corporation by one or more 
corporations solely in exchange for stock or securities of the 
transferee corporation, provided that immediately after the exchange 
the transferor corporation(s) own 80 percent of the voting stock and 80 
percent of all other stock of the transferee corporation.
    (ii) Where the corporate reorganization is merely a result of a 
change of the name, identity, internal corporate structure or place of 
organization and does not affect ownership 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

[[Page 78582]]

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, or poultry, 
or for aquaculture, to the extent that, and for so long as, the 
project's water use continues to be for such agricultural water use 
purposes.
    (c) Any project that did not require Commission approval prior to 
January 1, 2007, and not otherwise exempt from the requirements of 
paragraph (a)(1)(iv), (a)(2)(v) or (a)(3)(iv) pursuant to paragraph (b) 
of this section, may be undertaken by a new project sponsor upon a 
change of ownership pending action by the Commission on an application 
submitted by such project sponsor requesting review and approval of the 
project, provided such application is submitted to the Commission in 
accordance with this part on or before the date change of ownership 
occurs and the project features related to the source, withdrawal, 
diversion or consumptive use of water, or the nature or quantity of 
water withdrawal, diversion or consumptive use associated with the 
project do not change pending review of the application. For purposes 
of this paragraph, changes in the quantity of water withdrawal, 
diversion or consumptive use shall only relate to increases in quantity 
in excess of the quantity withdrawn, diverted or consumptively used 
prior to the change of ownership.


Sec.  806.5  Projects that may require review and approval.

    (a) The following projects, if not otherwise requiring review and 
approval under Sec.  806.4, and provided that the project sponsor is 
notified in writing by the Executive Director, 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.
    (b) Determinations by the Executive Director may be appealed to the 
Commission within 30 days after receipt of notice of such determination 
as set forth in Sec.  808.2.


Sec.  806.6  Transfer of approvals.

    (a) An existing Commission project approval may be transferred, or 
conditionally transferred, without prior Commission review and 
approval, to a new project sponsor upon a change of ownership of the 
project, subject to the provisions of paragraphs (b), (c) and (d) 
below, provided the new project sponsor notifies the Commission in 
advance of the date of the change of ownership, which notice shall be 
on a form and in a manner prescribed by the Commission and under which 
the new project sponsor certifies its intention to comply with all 
terms and conditions of the transferred approval and assume all other 
associated obligations.
    (b) An existing Commission project approval for any of the 
following categories of projects may be transferred, without Commission 
review or approval, upon a change of ownership and the new project 
sponsor may operate such project under the terms and conditions of the 
transferred approval:
    (1) A project undergoing a change of ownership as a result of a 
corporate reorganization of the following types:
    (i) Where property is transferred to a corporation by one or more 
corporations solely in exchange for stock or securities of the 
transferee corporation, provided that immediately after the exchange 
the transferor corporation(s) own 80 percent of the voting stock and 80 
percent of all other stock of the transferee corporation.
    (ii) Where the corporation reorganization is merely a result of a 
change of the name, identity, internal corporate structure or place of 
organization and does not affect ownership or control.
    (2) A project being transferred 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) A project involving the transfer of land used primarily for the 
raising of food, fiber or forage crops, trees, flowers, shrubs, turf, 
livestock or poultry, or for aquaculture, to the extent that, and for 
so long as, the project's water use continues to be for such 
agricultural water use purposes.
    (4) A project that satisfies all of the following conditions:
    (i) The existing Commission approval is less than ten (10) years 
old.
    (ii) The project has no associated pre-compact consumptive water 
use.
    (iii) The project has no associated diversion that was initiated 
prior to January 23, 1971.
    (iv) The project has no associated groundwater withdrawal that was 
initiated prior to July 13, 1978, unless such withdrawal has otherwise 
been approved by the Commission.
    (v) The project has no associated surface water withdrawal that was 
initiated prior to November 11, 1995, unless such withdrawal has 
otherwise been approved by the Commission.
    (vi) The project is not the subject of a pending compliance or 
enforcement matter before the Commission.
    (vii) The project features related to the source, withdrawal, 
diversion or consumptive use of water, or the nature or quantity of 
water withdrawal, diversion or use associated with the project, as 
identified in the existing Commission approval, have not changed or 
will not change upon its transfer. For purposes of this paragraph, 
changes in the quantity of water withdrawal, diversion or consumptive 
use shall only relate to increases in quantity in excess of the 
approved quantity. If the project involves both a consumptive water use 
and an associated withdrawal, then the withdrawal must have been 
approved by the Commission.
    (c) An existing Commission approval of a project that satisfies the 
following conditions may be conditionally transferred and the project 
sponsor may operate such project under the terms and conditions of the 
conditionally transferred approval, pending action by the Commission on 
the application submitted in accordance with paragraph (c)(3) below:
    (1) The project satisfies all of the following conditions:
    (i) The existing approval is less than ten (10) years old.
    (ii) The project is not the subject of a pending compliance or 
enforcement matter before the Commission.
    (iii) The project features related to the source, withdrawal, 
diversion or

[[Page 78583]]

consumptive use of water, or the nature or quantity of water 
withdrawal, diversion or consumptive use associated with the project, 
as identified in the existing Commission approval, have not changed or 
will not change upon its transfer. For purposes of this paragraph, 
changes in the quantity of water withdrawal, diversion or consumptive 
use shall only relate to increases in quantity in excess of the 
approved quantity.
    (2) The project satisfies one or more of the following conditions:
    (i) The project has an associated pre-compact consumptive water 
use.
    (ii) The project has an associated diversion that was initiated 
prior to January 23, 1971.
    (iii) The project has an associated groundwater withdrawal that was 
initiated prior to July 13, 1978 and that has not been approved by the 
Commission.
    (iv) The project has an associated surface water withdrawal that 
was initiated prior to November 11, 1995 and that has not been approved 
by the Commission. The project has a consumptive water use approval and 
has an associated withdrawal that has not been approved by the 
Commission.
    (3) The project sponsor submits an application to the Commission, 
in accordance with this part, within ninety (90) days from the date of 
the change of ownership, requesting review and approval of the 
applicable consumptive use, diversion or withdrawals, identified in 
paragraph (c)(2) above, as a modification to the conditionally 
transferred approval.
    (d) An existing Commission project approval for any project not 
satisfying the requirements of paragraphs (b) or (c) above may be 
conditionally transferred and the project sponsor may operate such 
project under the terms and conditions of the conditionally transferred 
approval, pending action by the Commission on an application the 
project sponsor shall submit to the Commission, provided that:
    (1) The new project sponsor submits an application to the 
Commission, in accordance with this part, within ninety (90) days from 
the date of the change of ownership, requesting review and approval of 
the project; and
    (2) The project features related to the source, withdrawal, 
diversion or consumptive use of water, or the nature or quantity of 
water withdrawal, diversion or consumptive use associated with the 
project do not change pending review of the application. For purposes 
of this paragraph, changes in the quantity of water withdrawal, 
diversion or consumptive use shall only relate to increases in quantity 
in excess of the quantity withdrawn, diverted or consumptively used 
prior to the change of ownership.


Sec.  806.7  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 administrative 
agreements or other cooperative arrangements, in accordance with the 
procedures outlined in this part, with appropriate agencies of the 
member jurisdictions regarding joint review of projects. These 
agreements or arrangements 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 administrative agreement or other cooperative 
arrangement with the Commission specifically providing therefor.


Sec.  806.8  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.  806.2 continue to be served.

Subpart B--Application Procedure


Sec.  806.10  Purpose of this subpart.

    The purpose of this subpart is to set forth procedures governing 
applications required by Sec. Sec.  806.4, 806.5, 806.6 and 18 CFR part 
801.


Sec.  806.11  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 is optional for the project sponsor 
(except with respect to aquifer test plans, see Sec.  806.12 but shall 
not relieve the sponsor from complying with the requirements of the 
compact or with this part.


Sec.  806.12  Constant-rate aquifer testing.

    (a) Prior to submission of an application pursuant to Sec.  806.13, 
a project sponsor seeking approval to withdraw or increase a withdrawal 
of groundwater shall perform a constant-rate aquifer test in accordance 
with this section.
    (b) The project sponsor shall prepare a constant-rate aquifer test 
plan for prior review and approval by Commission staff before testing 
is undertaken. Such plan shall include a groundwater availability 
analysis to determine the availability of water during a 1-in-10-year 
recurrence interval.
    (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.
    (e) The project sponsor may be required, at its expense, to provide 
temporary water supply if an aquifer test results in interference with 
an existing water use.


Sec.  806.13  Submission of application.

    Project sponsors of projects subject to the review and approval of 
the Commission under Sec.  806.4, 806.5 or 806.6 shall submit an 
application and applicable fee to the Commission, in accordance with 
this Subpart.


Sec.  806.14  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, including global positioning system (gps) 
coordinates accurate to within 10 meters.
    (ii) Project purpose.
    (iii) Proposed quantity of water to be withdrawn.
    (iv) Proposed quantity of water to be consumed, if applicable.

[[Page 78584]]

    (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.
    (xi) Evidence of compliance with applicable water registration 
requirements of the member jurisdiction in which the project is 
located.
    (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:
    (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.  806.25 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.  806.15  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 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.  806.16  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 administratively incomplete 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.  806.20  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.  806.4, 
806.5 and 806.6, 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.  806.21  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.

[[Page 78585]]

    (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.  806.22  Standards for consumptive uses of water.

    (a) The project sponsors of all consumptive water uses subject to 
review and approval under Sec.  806.4, 806.5 or 806.6 of this part 
shall comply with this section.
    (b) Mitigation. All project sponsors whose consumptive use of water 
is subject to review and approval under Sec.  806.4, 806.5 or 806.6 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 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) 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.  806.2 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.  
806.2, 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), the 
project sponsor shall 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.  806.30.
    (3) Standard conditions. The standard conditions set forth in Sec.  
806.21 above shall apply to projects approved by rule.
    (4) Mitigation. The project sponsor shall comply with mitigation in 
accordance with Sec.  806.22 (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, and shall be deemed to rescind any 
previous consumptive use approvals.


Sec.  806.23  Standards for water withdrawals.

    (a) The project sponsors of all withdrawals subject to review and 
approval under Sec. Sec.  806.4, 806.5 or 806.6

[[Page 78586]]

of this part shall comply with the following standards, in addition to 
those required pursuant to Sec.  806.21.
    (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 significant 
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; 
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.  806.24  Standards for diversions.

    (a) The project sponsors of all diversions subject to review and 
approval under Sec. Sec.  806.4, 806.5 or 806.6 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) Comply with the general standards set forth in Sec. Sec.  
801.3, 806.21, and 806.22, 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 
water 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 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.  806.25  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 groundwater 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:

[[Page 78587]]

    (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 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 groundwater and 
surface water withdrawals initiated on or after January 11, 1979.

Subpart D--Terms and Conditions of Approval


Sec.  806.30  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 5 days after any such loss.


Sec.  806.31  Term of approvals.

    (a) Approvals issued under this part shall have a term equal to the 
term of any accompanying member jurisdiction approval regulating the 
same subject matter, but not longer than 15 years, unless an alternate 
period is provided for in the Commission approval. If there is no such 
accompanying member jurisdiction approval, or if no term is specified 
in such accompanying member jurisdiction approval, the term of a 
Commission approval issued under this part shall be no longer than 15 
years or the anticipated life of the project, whichever is less, unless 
an alternate period is provided for in the Commission approval.
    (b) Commission approval of a project shall expire three years from 
the date of such approval if the withdrawal, diversion or consumptive 
use has not been commenced, unless an alternate period is provided for 
in the docket approval or such 3-year period is 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 two 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 five 
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 and with notification thereof 
to the member jurisdiction in which the project is located, 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) If a project sponsor submits an application to the Commission 
no later than six months prior to the expiration of its existing 
Commission approval, the existing approval will be deemed extended 
until such time as the Commission renders a decision on the 
application, unless the existing approval or a notification in writing 
from the Commission provide otherwise.


Sec.  806.32  Reopening/modification.

    (a) Once a project is 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 approval 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 significant 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 Commission approval, the Commission may issue an order 
suspending, modifying or revoking its approval of the project. The 
Commission may also, in its discretion, suspend, modify or revoke its 
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 the project sponsor's

[[Page 78588]]

expense, pending a final determination of causation by the Commission.
    (d) The Commission, upon its own motion, may at any time reopen any 
project approval and make additional corrective modifications that may 
be necessary.


Sec.  806.33  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.  806.34  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:
    (1) A completed 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 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, unless reduced, waived or delayed with the 
approval of the Executive Director.
    (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 or 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.  806.35  Fees.

    Project sponsors shall have an affirmative duty to pay such fees as 
established by the Commission.
0
3. Part 807 is added to read as follows.

PART 807--WATER WITHDRAWAL REGISTRATION

Sec.
807.1 Requirement.
807.2 Time limits.
807.3 Administrative agreements.
807.4 Effective date.
807.5 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.  807.1  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 806 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.  807.2  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 806 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

[[Page 78589]]

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.  807.3  Administrative agreements.

    The Commission may complete appropriate administrative agreements 
or arrangements to carry out this registration requirement through 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.  807.4  Effective date.

    This part shall be effective on January 1, 2007.


Sec.  807.5  Definitions.

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

0
4. Part 808 is added to read as follows.

PART 808--HEARINGS AND ENFORCEMENT ACTIONS

Subpart A--Hearings
Sec.
808.1 Public hearings.
808.2 Administrative appeals.
808.3 Hearing on administrative appeal.
808.4 Optional joint hearing.
Subpart B--Compliance and Enforcement
808.10 Scope of subpart.
808.11 Duty to comply.
808.12 Investigative powers.
808.13 Notice of violation.
808.14 Orders.
808.15 Show cause proceeding.
808.16 Civil penalty criteria.
808.17 Enforcement of penalties, abatement or remedial orders.
808.18 Settlement by agreement.
808.19 Effective date.

    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.  808.1  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 all 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.

[[Page 78590]]

Sec.  808.2  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.
    (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 affidavits setting forth 
facts upon which issuance of the stay may depend and 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.  808.3, 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.  806.14 (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.
    (j) Where the request for appeal relates to an action taken on a 
project, any hearing conducted pursuant to this section shall be 
convened in the general vicinity of the project location.


Sec.  808.3  Hearings on administrative appeal.

    (a) Unless otherwise agreed to by the Commission and the party 
requesting an administrative appeal under Sec.  808.2 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.

[[Page 78591]]

    (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 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.  808.4  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 of 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.  808.2 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/her and, if requested, of his/her 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.  808.10  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.  808.11  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.  808.12  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, 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

[[Page 78592]]

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 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.  808.13  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.  808.14  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.  808.15  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.  808.16.


Sec.  808.16  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.  808.15(f) should it determine, after consideration of the factors 
in paragraph (a) of this section, that extenuating circumstances 
justify such action.


Sec.  808.17  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.  808.15(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.  808.18  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

[[Page 78593]]

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 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.


Sec.  808.19  Effective date.

    This part shall be effective on January 1, 2007.

    Dated: December 5, 2006.
Thomas W. Beauduy,
Deputy Director.
[FR Doc. E6-21674 Filed 12-28-06; 8:45 am]
BILLING CODE 7040-01-P