[Federal Register Volume 79, Number 243 (Thursday, December 18, 2014)]
[Rules and Regulations]
[Pages 75428-75430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29643]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Part 806


Review and Approval of Projects

AGENCY: Susquehanna River Basin Commission.

ACTION: Final rule.

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SUMMARY: This document contains final rules that would amend the 
regulations of the Susquehanna River Basin Commission (Commission) to 
clarify the water uses involved in hydrocarbon development that are 
subject to the consumptive use regulations, as implemented by the 
Approval by Rule (ABR) program.

DATES: Effective January 23, 2015.

ADDRESSES: Susquehanna River Basin Commission, 4423 N. Front Street, 
Harrisburg, PA 17110-1788.

FOR FURTHER INFORMATION CONTACT: Jason E. Oyler, Esq., Regulatory 
Counsel, telephone: 717-238-0423, ext. 1312; fax: 717-238-2436; email: 
[email protected]. Also, for further information on the final rulemaking, 
visit the Commission's Web site at www.srbc.net.

SUPPLEMENTARY INFORMATION:

Comments and Responses to Proposed Rulemaking

    Notice of proposed rulemaking was published in the Federal Register 
on September 26, 2014 (79 FR 57850); the New York Register on October 
1, 2014; the Maryland Register on October 3, 2014; and the Pennsylvania 
Bulletin on November 1, 2014. The Commission convened a public hearing 
on November 6, 2014, in Harrisburg, Pennsylvania and a written comment 
period was held open through November 17, 2014.

General Comments

    Comment: The Commission received comments supportive of the changes 
in the terms and definitions noted in the Rulemaking. The changes are 
reflective of the nature of the industry and are plainly 
straightforward.
    Response: The Commission appreciates the comments.
    Comment: One commenter asked that the rulemaking not be adopted 
because the proposed changes restrict Commission oversight.
    Response: The Commission disagrees and notes that the proposed 
regulations strengthen its program and clarify a greater scope of water 
uses by the hydrocarbon development industry subject to the 
Commission's ABR program.
    Comment: The regulations should provide for an appeal by an 
impacted stakeholder before a permit is issued.
    Response: The ABR process provides for a comment period during 
which stakeholders may raise issues of concern regarding a project 
before an approval is issued. This public comment period is not changed 
by the rulemaking. No changes to the Commission's rules related to 
hearings and administrative appeals were proposed and are beyond the 
scope of this rulemaking. Further, allowing an appeal of a Commission 
approval prior to the issuance of such an approval would run contrary 
to longstanding principles of administrative law.

Comments by Section, Part 806

Section 806.3--Definitions

    Comment: Revise the definition of ``construction'' to include the 
pad sites, access roads, rights-of-way for pipelines and intake area 
clearings as such project activities affect the environment.
    Response: The Commission's definition of construction is 
appropriate for regulation of the withdrawal and consumptive use of 
water and appropriate for the ABR program for the use of water by 
hydrocarbon development projects. The ABR program does not regulate all 
environmental impacts of hydrocarbon development, rather the 
environmental impacts to which the commenter refers are regulated by 
the appropriate member jurisdictions through various permitting 
programs, including erosion and sediment control and oil and gas 
management. The ABR Program supports the regulation of other aspects of 
hydrocarbon development projects by requiring in Sec.  806.22(f)(7) 
that the project sponsor obtain all necessary permits or approvals 
required for the project from other federal, state or local government 
agencies.
    Comment: The term ``drilling pad site'' should be changed to ``well 
pad site'' because many of the activities that are regulated on the pad 
site go beyond just drilling.
    Response: The term ``drilling pad site'' is currently used in the 
Commission's regulations, but was not defined. The term is used in 
several sections and subsections not subject to the proposed 
rulemaking. For this reason, the Commission declines to make this 
change in this final rule. However, the Commission believes the comment 
has merit and will consider it in a forthcoming comprehensive 
rulemaking that is currently under development.
    Comment: In the definition of ``hydrocarbon development project,'' 
the term ``hydro-seeding'' is used. It is recommended to use the term 
``hydroseeding or other revegetation activities'' instead.
    Response: The Commission agrees with the comment and has made the 
change in the final rule.
    Comment: Language should be added clarifying that all water use on-
site requires Commission approval.
    Response: The definition of ``hydrocarbon development project'' 
contains language that covers all water-related activities and 
facilities on the drilling pad site, including activities and 
facilities associated with the production, maintenance, operation, 
closure, plugging and restoration of wells or drilling pad sites that 
would require consumptive water usage. The use of water for these 
activities will be subject to Commission approval through the ABR 
program.
    Comment: The Commission is to be applauded for revising its 
definitions to include water used not only for well development and 
drilling, but also for infrastructure.
    Response: The Commission appreciates the comment. The final rule 
retains the language extending the ABR approvals to specific water uses 
off the drilling pad site, which are water used for hydro-seeding or 
other revegetation activities, dust suppression, and hydro-excavation 
of access roads and underground lines, as well as tank cleanings, 
related to a drilling pad site or centralized impoundments.
    Comment: The Commission should extend its review to beyond the well 
pad.
    Response: The definition of ``hydrocarbon development project'' 
includes specified facilities and activities off the drilling pad site 
as noted in the prior response.

[[Page 75429]]

    Comment: A commenter opposes the Commission's responsibility for 
oversight ending once a gas well has been plugged.
    Response: The definition of ``hydrocarbon development project'' 
provides such a project continues ``until all post-plugging restoration 
is completed in accordance with all applicable member jurisdiction 
requirements.'' The Commission finds that this is an appropriate time 
for the Commission's jurisdiction under Sec.  806.22(f) to cease as the 
project sponsor's consumptive water use ceases at that point.
    Comment: The definition of ``project'' should be expanded to go 
beyond any ``independent activity.''
    Response: The Commission declines to expand the scope of the 
definition of ``project.'' The term ``project'' as defined matches the 
definition in Section 1.2 of the Susquehanna River Basin Compact, 
Public Law 91-575. The rulemaking provides specific definitions for 
``hydrocarbon development project'' and ``unconventional natural gas 
development project'' to add clarity to how these activities trigger 
the Commission's oversight and jurisdiction.
    Comment: The definition of ``project'' contains a typographical 
error. The word ``additional'' should be ``addition.''
    Response: The Commission agrees and the correction is made in the 
final rulemaking.

Section 806.15--Notice of Application

    Comment: Section 806.15(e) should be amended to require notice in a 
newspaper of general circulation ``serving the'' area which the water 
obtained from such source will be initially used, replacing the 
existing language of a newspaper of general circulation ``in each'' 
area.
    Response: This specific change was not a part of the proposed 
rulemaking. The Commission believes the existing language is adequate.

Section 806.22--Standards for Consumptive Uses of Water

    Comment: The term for approval under section 806.22(e)(7) should be 
5 years instead of 15 years.
    Response: The Approval by Rule in subsection 806.22(e) relates to 
projects where the sole source of water is from a public water supply. 
This type of ABR approval currently has a term of 15 years, and the 
Commission did not propose or contemplate any changes to this term in 
the proposed rulemaking. The Commission declines to make any change to 
the term provided in subsection 806.22(e)(7).
    Comment: The wording of subsection 806.22(f)(4) should be changed 
from ``per gas well'' to ``per oil and gas well'' because hydrocarbon 
development projects under the ABR program can relate to oil wells, gas 
wells or both.
    Response: The Commission agrees with the comment and has made the 
change in this final rulemaking.
    Comment: The change to subsection 806.22(f)(4) from ``dust 
control'' to ``other project related activity'' is an attempt to 
obfuscate an industry practice of using hydrofracturing wastewater by 
spraying it on the roads for dust suppression by folding into a broader 
term.
    Response: The Commission disagrees with the comment. The term 
``dust control'' in subsection 806.22(f)(4) has been replaced with the 
broader term ``other project related activity'' to appropriately 
reflect the broader scope of the consumptive water uses regulated by 
the Commission. The final regulations clarify that any consumptive uses 
of water for dust control on roads related to a drilling pad site must 
be accounted for under the project sponsor's ABR approval. Whether a 
project sponsor can use waste water for dust suppression on roads is a 
matter regulated by the Commission's member jurisdictions, and is 
beyond the scope of this rulemaking.
    Comment: In subsection 806.22(f)(10), the Commission noted that it 
was considering whether to change the duration of approvals issued 
under the ABR program from 5 years to a longer term of up to 15 years 
and specifically sought public comment regarding such change. Some 
commenters expressed support for a change to 15 years out of interest 
in greater flexibility for the industry in planning and suggested that 
a longer term would potentially result in fewer sources being permitted 
for use. One commenter recommended an initial term of five years and 
renewal terms of 15 years. Other commenters opposed any extension of 
the current 5-year term noting: Shorter terms allow the Commission to 
better consider evolving technologies and changes in industry 
practices; longer terms reduce opportunities for public input into 
ABRs; and shorter terms allow the Commission to more frequently adjust 
necessary management practices, procedures and reporting requirements.
    Response: The rulemaking as proposed retained the 5-year term 
currently in subsection 806.22(f)(10). Based on its deliberations, 
including the public comment, the Commission has decided to retain the 
5-year term in this final rulemaking.

Transition Issues

    This rulemaking takes effect on January 23, 2015. The Commission 
recognizes that project sponsors may have let ABRs expire for currently 
operating projects that, based on the clarifications provided in this 
final rule, will need to be covered under an ABR approval. The 
Commission encourages project sponsors to submit applications for these 
previously approved hydrocarbon development projects in a timely 
fashion. If application is made prior to June 30, 2015, the application 
may be made at the fee for ABR renewals. Any applications made after 
June 30, 2015, for currently operating projects that allowed their ABR 
approvals to expire will be made at the fee for new ABR applications 
and will be subject to active compliance efforts by the Commission, up 
to and including the assessment of civil penalties.

List of Subjects in 18 CFR Part 806

    Administrative practice and procedure, Water resources.

    Accordingly, for the reasons set forth in the preamble, the 
Susquehanna River Basin Commission amends 18 CFR part 806 as follows:

PART 806--REVIEW AND APPROVAL OF PROJECTS

0
1. The authority citation for part 806 continues to read as follows:

    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

0
2. In Sec.  806.3:
0
a. Revise the definition for ``Construction'';
0
b. Add, in alphabetical order, a definition of ``Drilling pad site'';
0
c. Remove the definition for ``Hydrocarbon development'' and add in its 
place, in alphabetical order, the definition of ``Hydrocarbon 
development project'';
0
d. Revise the definition of ``Project''; and
0
e. Remove the definition for ``Unconventional natural gas development'' 
and add in its place, in alphabetical order, the definition of 
``Unconventional natural gas development project''.
    The revisions and additions read as follows:


Sec.  806.3  Definitions.

* * * * *
    Construction. To physically initiate assemblage, installation, 
erection or

[[Page 75430]]

fabrication of any facility, involving or intended for the withdrawal, 
conveyance, storage or consumptive use of the waters of the basin. For 
purposes of unconventional natural gas development projects subject to 
review and approval pursuant to Sec.  806.4(a)(8), initiation of 
construction shall be deemed to commence upon the drilling (spudding) 
of a gas well, or the initiation of construction of any water 
impoundment or other water-related facility to serve the project, 
whichever comes first.
* * * * *
    Drilling pad site. The area occupied by the equipment or facilities 
necessary for or incidental to drilling, production or plugging of one 
or more hydrocarbon development wells and upon which such drilling has 
or is intended to occur.
* * * * *
    Hydrocarbon development project. A project undertaken for the 
purpose of extraction of liquid or gaseous hydrocarbons from geologic 
formations, including but not limited to the drilling, casing, 
cementing, stimulation and completion of unconventional natural gas 
development wells, and all other activities and facilities associated 
with the foregoing or with the production, maintenance, operation, 
closure, plugging and restoration of such wells or drilling pad sites 
that require water for purposes including but not limited to, re-
stimulation and/or re-completion of wells, fresh water injection of 
production tubing, use of coiled tubing units, pumping, cement 
hydration, dust suppression, and hydro-seeding or other revegetation 
activities, until all post-plugging restoration is completed in 
accordance with all applicable member jurisdiction requirements. The 
project includes water used for hydro-seeding or other revegetation 
activities, dust suppression and hydro-excavation of access roads and 
underground lines, as well as cleaning of tanks, related to a drilling 
pad site and centralized impoundments.
* * * * *
    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.
* * * * *
    Unconventional natural gas development project. A hydrocarbon 
development project undertaken for the purpose of extraction of gaseous 
hydrocarbons from low permeability geologic formations utilizing 
enhanced drilling, stimulation or recovery techniques.
* * * * *
0
3. In Sec.  806.15, revise paragraph (e) to read as follows:


Sec.  806.15  Notice of application.

* * * * *
    (e) For applications submitted under Sec.  806.22(f)(13) for a 
wastewater discharge source, the newspaper notice requirement contained 
in paragraph (a) of this section shall be satisfied by publication in a 
newspaper of general circulation in each area within which the water 
obtained from such source will initially be used for hydrocarbon 
development.
* * * * *

0
4. In Sec.  806.22, revise paragraphs (e)(7), (f) introductory text, 
(f)(1), (f)(4), (f)(10), (f)(11) introductory text, and (f)(12) to read 
as follows:


Sec.  806.22  Standards for consumptive uses of water.

* * * * *
    (e) * * *
    (7) Approval by rule shall be effective upon issuance by the 
Executive Director to the project sponsor, shall expire 15 years from 
the date of such issuance, and supersede any previous consumptive use 
approvals to the extent applicable to the project.
* * * * *
    (f) Approval by rule for consumptive use related to unconventional 
natural gas and other hydrocarbon development projects.
    (1) Any unconventional natural gas development project subject to 
review and approval under Sec.  806.4(a)(8), or any other hydrocarbon 
development project subject to review and approval under Sec. Sec.  
806.4, 806.5, or 806.6, shall be subject to review and approval by the 
Executive Director under this paragraph (f) regardless of the source or 
sources of water being used consumptively.
* * * * *
    (4) The project sponsor shall comply with metering, daily use 
monitoring and quarterly reporting as specified in Sec.  806.30, or as 
otherwise required by the approval by rule. Daily use monitoring shall 
include amounts delivered or withdrawn per source, per day, and amounts 
used per oil or gas well or drilling pad site, per day, for well 
drilling, hydrofracture stimulation, hydrostatic testing, and other 
project-related activity. The foregoing shall apply to all water, 
including stimulation additives, flowback, drilling fluids, formation 
fluids and production fluids, utilized by the project. The project 
sponsor shall also submit a post-hydrofracture report in a form and 
manner as prescribed by the Commission.
* * * * *
    (10) Approval by rule shall be effective upon issuance by the 
Executive Director to the project sponsor, shall expire five years from 
the date of such issuance, and supersede any previous consumptive use 
approvals to the extent applicable to the project.
    (11) In addition to water sources approved for use by the project 
sponsor pursuant to Sec.  806.4 or this section, a project sponsor 
issued an approval by rule pursuant to paragraph (f)(9) of this section 
may utilize any of the following water sources at the drilling pad 
site, subject to such monitoring and reporting requirements as the 
Commission may prescribe:
* * * * *
    (12) A project sponsor issued an approval by rule pursuant to 
paragraph (f)(9) of this section may utilize a source of water approved 
by the Commission pursuant to Sec.  806.4(a), or by the Executive 
Director pursuant to paragraph (f)(14) of this section, and issued to 
persons other than the project sponsor, provided any such source is 
approved for use in hydrocarbon development, the project sponsor has an 
agreement for its use, and at least 10 days prior to use, the project 
sponsor registers such source with the Commission on a form and in the 
manner prescribed by the Commission.
* * * * *

    Dated: December 12, 2014.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2014-29643 Filed 12-17-14; 8:45 am]
BILLING CODE 7040-01-P