[Federal Register Volume 80, Number 238 (Friday, December 11, 2015)]
[Rules and Regulations]
[Pages 76855-76859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31174]


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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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[[Page 76856]]

SUMMARY: This document contains final rules that would amend the 
regulations of the Susquehanna River Basin Commission (Commission) to 
simplify and clarify the process for transferring approvals and to add 
sections dealing with general permits and modifications to approvals. 
These amendments are to be made effective upon publication of this 
rulemaking.

DATES: Effective December 11, 2015.

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

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

SUPPLEMENTARY INFORMATION: Notice of proposed rulemaking was published 
in the Federal Register on September 21, 2015 (80 FR 56936); the New 
York Register on October 7, 2015; the Maryland Register on October 16, 
2015; and the Pennsylvania Bulletin on October 17, 2015. The Commission 
convened a public hearing on October 29, 2015, in Grantville, 
Pennsylvania and a written comment period was held open through 
November 9, 2015.

General Comments

    Comment: The rule will simplify the approval process for certain 
modifications and will be less burdensome on permittees and the 
Commission while still protecting the Susquehanna River Basin 
resources.
    Comment: The proposed rule will assist in streamlining the 
administrative and permitting process and are positive changes.
    Comment: The proposed rule should serve to provide great potential 
improvements for both the Commission and the regulated community.
    Response: The Commission appreciates the comments.

Comments by Section, Part 806

    Section 806.6--Transfer of approvals.
    Comment: We appreciate Sec.  806.6(b) addressing previously 
unpermitted withdrawals and uses of water, which should address actions 
that affect local water resources.
    Response: The Commission appreciates the comment. This section is 
largely unchanged from the prior regulatory text.
    Comment: The Commission should require approvals being transferred 
that are greater than 10 years old to perform a new or updated aquatic 
resource survey (ARS).
    Response: The Commission disagrees with the comment. The transfer 
rule does not allow new project sponsors to increase the withdrawal or 
consumptive use of the project above what was previously approved. The 
Commission will be able to require an ARS, if appropriate and 
necessary, when these approvals expire and need to be renewed pursuant 
to 18 CFR 806.14.
    Comment: The proposed rule will allow approvals where there is a 
change in ownership but no change in the project or the use of water to 
occur without the submittal of an entirely new application, and the 
Commission is to be commended for proposing this change.
    Response: The Commission appreciates the comment.
    Section 806.14--Contents of Application.
    Comment: The Commission proposed to add Sec.  806.14(d) to set 
forth the application requirements for minor modifications. Section 
806.14(a) should be correspondingly revised to include an exception for 
applications for minor modifications.
    Response: The Commission agrees and will add the phrase 
``applications for minor modifications'' in the first sentence of Sec.  
806.14(a) to clarify that the requirements of that paragraph do not 
apply to applications for minor modifications.
    Section 806.15--Notice of application.
    Comment: The next to last sentence of Sec.  806.15(a) appears to 
contain grammatically incorrect language (which appears in the existing 
regulatory text). This should be corrected.
    Response: The Commission agrees with the comment. The next to last 
sentence will be corrected to delete the word ``for'' and place two 
commas to make the sentence grammatically correct.
    Comment: The intent of proposed rulemaking is that new paragraph 
(i) is meant to be the exclusive source of notice requirements for 
minor modification; however, no changes were proposed to paragraph (a) 
that make it clear that paragraph (a) does not apply to minor 
modifications. Paragraph (a) should be clarified.
    Response: The Commission agrees with the comment and also finds it 
applicable to new paragraph (h). In the final rule, paragraph (a) will 
now begin with ``Except with respect to paragraphs (h) and (i), . . 
.''.
    Comment: The extension of time allotted for notices to be published 
from 10 to 20 days allows ample time for all interested parties and the 
public to comment.
    Response: The Commission appreciates with the comment.
    806.17--General permits.
    Comment: Section 806.17(d)(3) provides that a Notice of Intent 
(NOI) must be denied if the project does not meet the requirements of 
Sec.  806.21(a) or (b). However, Sec.  806.21(b) does not provide any 
requirements, but rather gives the Commission discretion to modify or 
deny a project if the Commission determines that the project is not in 
the best interest of the conversation, development, management or 
control of the basin's water resources or is in conflict with the 
Comprehensive Plan. The reference to Sec.  806.21(b) should be removed 
or the standard placed verbatim into Sec.  806.17(d)(3).
    Response: The Commission does not agree with the proposed revisions 
of the commenter. However, the Commission agrees that the paragraph 
could be clarified in light of the comment. As a part of the final 
rule, the Commission will revise paragraph (d)(3) to read as set out in 
the regulatory text at the end of this document.
    Comment: The Commission does not define ``minimal adverse impacts'' 
in Sec.  806.17(a)(4).
    Comment: The Commission should tier a determination of minimal 
adverse impacts, looking at the existing standards in 18 CFR 806.23 or 
adopting a ``significance'' inquiry as provided in the National 
Environmental Policy Act (NEPA).
    Comment: The Commission should add a paragraph that provides that 
it shall not issue a general permit that creates or incites significant 
direct, indirect or cumulative impacts to water resources.
    Response: The Commission agrees that Sec.  806.17(a)(4) would be 
strengthened by a reference to the Commission's existing regulatory 
review standards. These standards are known and defined with respect to 
Commission reviews of consumptive uses, withdrawals and diversions. 
Conversely, the Commission does not agree that the inquiries under NEPA 
would provide clarity in a substantive review in establishing a general 
permit. In addition, adopting a new set of standards for general 
permits would add complexity and confusion to the process that is 
avoided by referencing the Commission's existing review standards. The 
Commission will revise the final rule so that Sec.  806.17(a)(4) reads 
as set out in the regulatory text at the end of this document.

[[Page 76857]]

    Comment: The proposed regulations seem to presume NOI issuance.
    Response: The Commission disagrees with the comment. Part of the 
proposed rule includes Sec.  806.17(d) entitled, ``Denial of 
Coverage.''
    Comment: Public notice under the general permit procedure is 
inadequate. Specifically, the public is not afforded notice via the 
Federal Register of receipt of an NOI.
    Response: The Commission agrees that the procedures do not set 
forth any requirement that the Commission publish receipt of NOIs. 
Accordingly, the Commission will amend the final rule to include a new 
paragraph (c)(9) to read as set out in the regulatory text at the end 
of this document.
    Comment: Section 806.17(b)(3) should be revised to require the 
Commission to take into account the level of public interest and 
likelihood for controversy for any proposed general permit in 
determining whether to hold a public hearing.
    Response: The Commission agrees with the comment. The Commission 
will amend Sec.  806.17(b)(3) to read as set out in the regulatory text 
at the end of this document.
    Comment: Section 806.17(c)(4) should be amended to provide for full 
Commission review and approval of general permits.
    Response: No such revision is necessary. Section 806.17(b)(4) 
currently provides that the Commission will adopt and issue general 
permits. Paragraph (c)(4) provides that the approval of coverage under 
a general permit, shall be determined by the Executive Director unless 
the Commission establishes a different mechanism for approval when 
issuing the general permit. This process is similar to the existing 
process for approving projects under the Commission's Approvals By Rule 
in 18 CFR 806.22(e)(7) and (f)(10), where the Executive Director issues 
the approvals to project sponsors.
    Comment: Section 806.17(c)(8) should be amended to require the 
project to conduct an aquatic resource survey (ARS) before any General 
Permit is renewed or amended.
    Response: The Commission disagrees with the comment. The Commission 
currently requires projects to conduct an ARS on a case-by-case basis 
for individual applications for surface water withdrawals. The 
Commission does not believe that it would be appropriate to require 
ARSs to be conducted as a rule for every general permit NOI holder for 
renewal or amendment. The general permit procedures as proposed, 
however, are sufficiently broad to allow the Commission, as a part of 
the scope or application of a general permit developed by the 
Commission, to require an ARS from NOI applicants, if the Commission 
finds it appropriate for the type of activity being permitted.
    Comment: The Commission is urged to specifically mandate adequate 
fees for general permit applications.
    Response: The Commission appreciates the comment. The proposed rule 
provides that the Commission may set a fee for NOIs to any general 
permit. This allows the Commission to set a specific fee for NOIs under 
each particular general permit and tailor the fees to what is required 
of the NOI applicants and the Commission for each activity permitted.
    806.18--Approval modifications.
    Comment: Section 806.18(c)(8) should be revised to be grammatically 
consistent with paragraphs (c)(1) through (7).
    Response: The Commission agrees with the comment. Paragraph (c)(8) 
is revised to read as set out in the regulatory text at the end of this 
document.
    Comment: The word ``flows'' in Sec.  806.18(d)(4) should be revised 
to ``flow.''
    Response: The Commission agrees with the comment and has made this 
revision to the final rule.
    Comment: Aside from the correction of typographical errors, every 
suggested minor modification category includes changes in permit terms 
that can result in significant adverse impacts to local water resources 
and should not be allowed as minor modifications.
    Response: The Commission disagrees with the comment. In developing 
the list of minor modifications, the Commission examined the range of 
modification requests that it receives and carefully vetted those 
categories and developed them specifically because they do not pose 
significant adverse impacts to local water resources. Review of these 
types of modifications is largely administrative in nature and poses 
little to no risk to human health, safety or the environment.

Transition Issues

    As a part of the Resolution adopting this final rule, the 
Commission also has set a reduced fee for applications for minor 
modifications at $750. Future adjustments may be made to this 
application fee during the regular annual adjustments to the Commission 
fee schedule.

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. Amend Sec.  806.4 by adding paragraph (a)(9) and revising paragraph 
(c) to read as follows:


Sec.  806.4  Projects requiring review and approval.

    (a) * * *
    (9) Any project subject to coverage under a general permit issued 
under Sec.  806.17.
* * * * *
    (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) of this section, 
pursuant to paragraph (b) of this section, may be undertaken by a new 
project sponsor upon a change of ownership pending action on a transfer 
application under Sec.  806.6.

0
3. Revise Sec.  806.6 to read as follows:


Sec.  806.6  Transfer of approvals.

    (a) An existing Commission approval may be transferred to a new 
project sponsor by the Executive Director provided:
    (1) The application for transfer is submitted within 90 days of a 
transfer or change in ownership of a project.
    (2) The new project sponsor operates the project subject to the 
same terms and conditions of the existing approval pending approval of 
the transfer application.
    (3) Any noncompliance by the existing project sponsor associated 
with the project or by the new project sponsor associated with other 
projects is resolved to the Commission's satisfaction.
    (4) If the existing approval is greater than 10 years old, the 
transfer shall be conditioned to require the submission of an updated 
metering and monitoring plan consistent with the requirements of Sec.  
806.30.
    (5) If the existing project has an unapproved withdrawal, 
consumptive use and/or diversion listed in paragraph

[[Page 76858]]

(b) of this section, the transfer shall be conditioned to require the 
submission of a new application for review and approval of the 
unapproved withdrawal, consumptive use and/or diversion consistent with 
Sec. Sec.  806.4 and 806.14.
    (6) Any modifications proposed by the new project sponsor shall be 
subject to a separate application and review process under Sec. Sec.  
806.14 and 806.18.
    (b) Previously unapproved activities associated with a project 
subject to transfer under paragraph (a) of this section include:
    (1) The project has an associated pre-compact consumptive water use 
that has not been subject to approval or had mitigation approved by the 
Commission.
    (2) The project has an associated diversion that was initiated 
prior to January 23, 1971.
    (3) The project has an associated groundwater withdrawal that was 
initiated prior to July 13, 1978, and that has not been approved by the 
Commission.
    (4) 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.
    (5) The project has a consumptive water use approval and has an 
associated withdrawal that has not been approved by the Commission.
    (c) Upon undergoing a change of name that does not affect ownership 
or control of the project, the project sponsor must request a 
reissuance of the project's approval by the Executive Director within 
90 days from the date of the change.

Subpart B--Application Procedure

0
4. Amend Sec.  806.14 by revising paragraph (a) introductory text and 
adding paragraph (d) to read as follows:


Sec.  806.14  Contents of applications.

    (a) Except with respect to applications to renew an existing 
Commission approval, applications for minor modifications, and Notices 
of Intent for approvals by rule and general permits, 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. Renewal applications shall include such information 
that the Commission determines to be necessary for the review of same, 
shall be subject to the standards set forth in subpart C of this part, 
and shall likewise be submitted on forms and in the manner prescribed 
by the Commission.
* * * * *
    (d) Applications for minor modifications must be complete and will 
be on a form and in a manner prescribed by the Commission. Applications 
for minor modifications must contain the following:
    (1) Description of the project;
    (2) Description of all sources, consumptive uses and diversions 
related to the project;
    (3) Description of the requested modification;
    (4) Statement of the need for the requested modification;
    (5) Demonstration that the anticipated impact of the requested 
modification will not adversely impact the water resources of the 
basin; and
    (6) Any other information that the Commission or Executive Director 
deems necessary.

0
5. Amend Sec.  806.15 by revising paragraph (a) and adding paragraphs 
(h) and (i) to read as follows:


Sec.  806.15  Notice of application.

    (a) Except with respect to paragraphs (h) and (i) of this section, 
any project sponsor submitting an application to the Commission shall 
provide notice thereof to the appropriate agency of the member State, 
each municipality in which the project is located, and the county 
planning agency of each county in which the project is located. The 
project sponsor shall also publish notice of submission of the 
application at least once in a newspaper of general circulation serving 
the area in which the project is located. The project sponsor shall 
also meet any of the notice requirements set forth in paragraphs (b) 
through (f) of this section, if applicable. All notices required under 
this section shall be provided or published no later than 20 days after 
submission of the application to the Commission and shall contain a 
description of the project, its purpose, the requested quantity of 
water to be withdrawn, obtained from sources other than withdrawals, or 
consumptively used, and the address, electronic mail address, and phone 
number of the project sponsor and the Commission. All such notices 
shall be in a form and manner as prescribed by the Commission.
* * * * *
    (h) For Notices of Intent (NOI) seeking coverage under a general 
permit, the project sponsor shall provide the NOI to the appropriate 
agency of the member State and each municipality and county planning 
agency in which the project is located and any additional notice 
identified in the general permit.
    (i) For applications for minor modifications, the project sponsor 
shall provide notice of the application to the appropriate agency of 
the member State and each municipality and county planning agency in 
which the project is located.

0
6. Add Sec.  806.17 to read as follows:


Sec.  806.17  General permits.

    (a) Coverage and purpose. The Commission may issue a general 
permit, in lieu of issuing individual approvals, for a specifically 
described category of diversions, water withdrawals and consumptive 
uses that:
    (1) Involve the same or substantially similar types of operations 
or activities;
    (2) Require the same limitations or operating conditions, or both;
    (3) Require the same or similar monitoring and reporting; and
    (4) Will result in minimal adverse impacts consistent with 
Sec. Sec.  806.21 through 806.24.
    (b) Procedure for issuance. (1) At least 30 days prior to the 
issuance of a general permit, the Commission shall publish notice in 
the Federal Register and the member jurisdiction administrative 
bulletins of the intent to issue a general permit.
    (2) At least 30 days shall be provided for interested members of 
the public and Federal, State and local agencies to provide written 
comments on a proposed general permit.
    (3) The Commission or Executive Director may, in its discretion, 
hold a public hearing on a proposed general permit, taking into account 
the level of public interest and likelihood of controversy.
    (4) The issuance of a general permit adopted by the Commission will 
be published in the Federal Register and the member jurisdiction 
administrative bulletins. This notice shall set forth the effective 
date of the general permit.
    (c) Administration of general permits. General permits may be 
issued, amended, suspended, revoked, reissued or terminated under this 
section.
    (1) Any general permit issued under this section shall set forth 
the applicability of the permit and the conditions that apply to any 
diversion, withdrawal or consumptive use authorized by such general 
permit.
    (2) The Commission may fix a term to any general permit issued.
    (3) A project sponsor shall obtain permission to divert, withdraw 
or consumptively use water in accordance with a general permit by 
filing a Notice of Intent (NOI) with the Commission, in a form and 
manner determined by the Commission.

[[Page 76859]]

    (4) Approval of coverage under a general permit shall be determined 
by the Executive Director or by any other manner that the Commission 
shall establish for any general permit.
    (5) The Commission may set a fee for NOIs to any general permit.
    (6) A project sponsor shall provide notice for NOIs in accordance 
with Sec.  806.15(h) and any additional notice requirements that the 
Commission may adopt for any general permit.
    (7) The requirements of Sec.  806.16 apply to the review of NOIs to 
any general permit.
    (8) Upon reissuance or amendment of a general permit, all project 
sponsors permitted to divert, withdraw or consumptively use water in 
accordance with the previous general permit shall be permitted to 
continue to operate with the renewed or modified general permit unless 
otherwise notified by the Commission.
    (9) Notice of receipt of NOIs shall be published on the 
Commission's Web site and in any other manner that the Commission shall 
establish for any general permit.
    (d) Denial of coverage. The Executive Director will deny or revoke 
coverage under a general permit when one or more of the following 
conditions exist:
    (1) The project or project sponsor does not or can no longer meet 
the criteria for coverage under a general permit.
    (2) The diversion, withdrawal or consumptive use, individually or 
in combination with other similar Commission regulated activities, is 
causing or has the potential to cause adverse impacts to water 
resources or competing water users.
    (3) The project does not comport with Sec.  806.21(a) or (b).
    (4) The project includes other diversions, withdrawals or 
consumptive uses that require an individual approval and the issuance 
of both an individual approval and a general permit for the project 
would constitute an undue administrative burden on the Commission.
    (5) The Executive Director determines that a project cannot be 
effectively regulated under a general permit and is more effectively 
regulated under an individual approval.
    (e) Requiring an individual approval. If coverage is denied or 
revoked under paragraph (d) of this section, the project sponsor shall 
be notified in writing. The notice will include a brief statement for 
the reasons for the decision. If coverage under a general permit was 
previously granted, the notice will also include a deadline for 
submission of an application for an individual approval. Timely 
submission of a complete application will result in continuation of 
coverage of the applicable withdrawal, consumptive use or diversion 
under the general permit, until the Commission takes final action on 
the pending individual approval application.
    (f) Action of the Commission. Action by the Executive Director 
denying or revoking coverage under a general permit under paragraph (d) 
of this section, or requiring an individual approval under paragraph 
(e) of this section, is not a final action of the Commission until the 
project sponsor submits and the Commission takes final action on an 
individual approval application.

0
7. Add Sec.  806.18 to read as follows:


Sec.  806.18  Approval modifications.

    (a) General. A project sponsor shall submit an application for 
modification of a current approval prior to making a change in the 
design, operational plans, or use as presented in the application upon 
which the approval was originally issued, and that will affect the 
terms and conditions of the current approval.
    (b) Applications for modification. A project sponsor may apply for 
a modification of a current approval by submitting an application for 
modification to the Commission.
    (c) Minor modifications. The following are minor modifications:
    (1) Correction of typographical errors;
    (2) Changes to monitoring or metering conditions;
    (3) Addition of sources of water for consumptive use;
    (4) Changes to the authorized water uses;
    (5) Changes to conditions setting a schedule for developing, 
implementing, and/or reporting on monitoring, data collection and 
analyses;
    (6) Changes to the design of intakes;
    (7) Increases to total system limits that were established based on 
the projected demand of the project; and
    (8) Modifications of extraction well network used for groundwater 
remediation systems.
    (d) Major modifications. Major modifications are changes not 
considered to be minor modifications. Major modifications may include, 
but are not limited to:
    (1) Increases in the quantity of water withdrawals, consumptive 
uses or diversions;
    (2) Increases to peak day consumptive water use;
    (3) Increases to the instantaneous withdrawal rate or changes from 
a single withdrawal rate to a varied withdrawal rate;
    (4) Changes affecting passby flow requirements; and
    (5) Changes that have the potential for adverse impacts to water 
resources or competing water users.
    (e) Notice and approval. (1) Applications for modifications are 
subject to the notice requirements of Sec.  806.15.
    (2) The Commission or Executive Director may approve, approve with 
conditions or deny an application for minor modification, or direct 
that an application for major modification be made.
    (3) The Commission may approve, approve with conditions or deny an 
application for major modification.

    Dated: December 7, 2015.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2015-31174 Filed 12-10-15; 8:45 am]
 BILLING CODE 7040-01-P