[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Proposed Rules]
[Pages 64812-64825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22668]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 806 and 808


Review and Approval of Projects

AGENCY: Susquehanna River Basin Commission.

ACTION: Notice of proposed rulemaking; notice of public hearings.

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SUMMARY: This document contains proposed rules that would amend the 
regulations of the Susquehanna River Basin Commission (Commission) to 
clarify application requirements and standards for review of projects, 
amend the rules dealing with the mitigation of consumptive uses, add a 
subpart to provide for registration of grandfathered projects, and 
revise requirements dealing with hearings and enforcement actions. 
These rules are designed to enhance the Commission's existing 
authorities to manage the water resources of the basin and add 
regulatory clarity.

DATES: In addition, the Commission will be holding two informational 
webinars explaining the proposed rulemaking on October 11, 2016, and 
October 17, 2016. Instructions for registration for the webinars will 
be posted on the Commission's Web site. Comments on the proposed 
rulemaking may be submitted to the Commission on or before January 30, 
2017. The Commission has scheduled four public hearings on the proposed 
rulemaking:
    1. November 3, 2016, 2 p.m. to 5 p.m. or at the conclusion of 
public testimony, whichever is sooner; Harrisburg, PA.
    2. November 9, 2016, 7 p.m. to 9 p.m. or at the conclusion of 
public testimony, whichever is sooner; Binghamton, NY.
    3. November 10, 2016, 7 p.m. to 9 p.m. or at the conclusion of 
public testimony, whichever is sooner; Williamsport, PA.
    4. December 8, 2016, 1 p.m. to 3 p.m. or at the conclusion of 
public testimony, whichever is sooner; Annapolis, MD.
    The locations of the public hearings are listed in the ADDRESSES 
section of this document.

ADDRESSES: Comments may be mailed to: Jason E. Oyler, Esq., General 
Counsel, Susquehanna River Basin Commission, 4423 N. Front Street, 
Harrisburg, PA 17110-1788, or by email to [email protected]. The 
public hearings locations are:
    1. Harrisburg--Pennsylvania State Capitol (East Wing, Room 8E-B), 
Commonwealth Avenue, Harrisburg, PA 17120.
    2. Binghamton--DoubleTree by Hilton Hotel Binghamton (South 
Riverside Room), 225 Water Street, Binghamton, NY 13901.
    3. Williamsport--Holiday Inn Williamsport (Gallery Room), 100 Pine 
Street, Williamsport, PA 17701.
    4. Annapolis--Loews Annapolis Hotel (Powerhouse-Point Lookout), 126 
West Street, Annapolis, MD 21401.
    Those wishing to testify are asked to notify the Commission in 
advance, if possible, at the regular or electronic addresses given 
below.

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 proposed 
rulemaking, visit the Commission's Web site at http://www.srbc.net.

SUPPLEMENTARY INFORMATION: The Commission's regulations have not 
undergone a thorough review since the last comprehensive rulemaking in 
2006. Many of these regulations remain unchanged. However, since 
initial implementation, the Commission recognizes the need for clarity 
in some sections and statement of procedure in others. These changes 
are designed to bring clarity and certainty to the regulated community. 
This rulemaking reflects the efforts of a comprehensive internal review 
by the Commission staff and review by the Commission's member 
jurisdictions. The rulemaking centers on a few key areas of the 
regulations: Project review, consumptive use mitigation, registration 
of grandfathered projects, and administrative procedures. The 
Commission proposed this rulemaking to clarify application requirements 
and standards for review of projects, amend the rules dealing with the 
mitigation of consumptive uses, add a subpart to provide for 
registration of grandfathered projects, and revise requirements dealing 
with hearings and enforcement

[[Page 64813]]

actions. Because the concept is a new addition to the regulations, the 
Commission believes that an explanation for the rationale for the 
proposed rules relating to the registration of grandfathered projects 
would be helpful for the public.

Sources and Activities That Predate Regulations

    The Commission's regulations provide that certain withdrawals and 
pre-compact consumptive uses that are in excess of the Commission's 
regulatory thresholds do not require Commission approval under Sec.  
806.4(a) if those sources predated regulations, provided there is no 
environmental harm. This exemption from review and approval is commonly 
referred to as ``grandfathering.'' Generally, pre-compact consumptive 
uses initiated prior to January 23, 1971, groundwater withdrawals 
initiated prior to July 13, 1978, and surface water withdrawals 
initiated prior to November 11, 1995, are considered ``grandfathered'' 
and do not need to apply for a regulatory approval by the Commission. 
The Commission's current regulations provide several mechanisms by 
which a grandfathered project must apply for regulatory approval, 
including a change in the nature of the use, change of ownership, an 
increase in the quantity of the withdrawal or use, or adding a new 
source.
    However, in enacting the Compact that created the Commission, 
Congress and the participating states declared that . . .

the conservation, utilization, development, management and control 
of the water resources of the Susquehanna River Basin under 
comprehensive multiple purpose planning will produce the greatest 
benefits and produce the most efficient service in the public 
interest. Compact Preamble Sect 1--emphasis added.

The Commission's ``Comprehensive Plan for the Water Resources of the 
Susquehanna Basin'' contains an objective to wisely manage the water 
resources of the Basin to assure short-term resource availability and 
long-term balance between healthy ecosystems and economic viability 
(SRBC Comprehensive Plan, 2013). The desired result of one of the key 
water resource needs, identified as Sustainable Water Development, is 
to regulate and plan for water resources development in a manner that 
maintains economic viability, protects instream users, and ensures 
ecological diversity; and meets immediate and future needs of the 
people of the basin for domestic, municipal, commercial, agricultural 
and industrial water supply and recreational activities.
    As part of this objective, the Commission recently completed a 
major effort to characterize water use and availability for the 
Susquehanna River Basin. The Cumulative Water Use and Availability 
Study (CWUAS) represents the most comprehensive analysis to date 
regarding water availability. The Commission is increasingly concerned 
about the availability of water to meet immediate and future needs as 
water is needed to satisfy the continuing prospect of growing 
population and increasing demands for drinking water, freshwater inflow 
to the Chesapeake Bay, power generation, industrial activity, 
commercial uses, recreation and ecological diversity. Water resources 
are neither limitless nor equally distributed across the basin, and in 
some areas the demand for and use of water resources may be approaching 
or exceeding the sustainable limit.
    As part of the CWUAS, the Commission developed a comprehensive 
water use database by integrating water use records from the 
Commission, and its member jurisdictions of New York, Pennsylvania, and 
Maryland in an unprecedented compilation effort. Compiling accurate 
water use data is a common challenge for water resource agencies, even 
recognizing advances in accessing data records through electronic 
reporting for both the Commission and our member states. The study 
shows water availability in nearly 1 in 10 watersheds is sufficiently 
compromised to warrant additional analysis and improved knowledge of 
patterns of withdrawal and use.
    The CWUAS also reveals the limitations of the currently available 
water use data. While these data include records of regulated public 
water supply withdrawals for all states, withdrawals for the remaining 
variety of self-supplied uses are commonly lacking with the exception 
of those projects regulated by the Commission. Coverage for unregulated 
withdrawals, including grandfathered projects, is provided through 
state registration programs and varies widely in data quality and 
completeness among the member jurisdictions. For the most part, data 
for consumptive use not regulated by the Commission are absent 
altogether.
    At the time of its formation and adoption of its initial 
regulations, neither the Commission nor its member jurisdictions 
conducted any inventory of existing water users, their sources or the 
quantity of existing water use. Grandfathered water withdrawals and use 
are clearly factors in the determination of sustainable water 
availability. The Commission's analysis estimates a total of 760 
grandfathered projects with an estimated water use of 970 million 
gallons per day, which is approximately equal to the total existing 
regulated consumptive use approved by the Commission. With such large 
water quantities in question, it is obvious that some of the 
grandfathered projects are among the largest users of basin waters. 
Therefore, appropriate regulation and comprehensive planning for the 
use of the water resources are seriously hampered without accurate and 
reliable data regarding the quantity of the grandfathered uses and 
withdrawals. This is even more critical for areas identified as 
potentially stressed, water challenged or otherwise having limited 
water availability.
    While our member jurisdictions have made efforts to collect water 
withdrawal data, and the Commission uses that data as available, our 
member jurisdictions do not comprehensively register consumptive water 
use. In addition, they do not have comprehensive historic data for 
legacy water users to effectively determine the quantity of water 
withdrawn prior to 1995 or the water consumptively used prior to 1971. 
This lack of comprehensive and reliable data hampers the Commission by 
creating significant gaps in our knowledge and data of water 
withdrawals and water use in the basin, which in turn hinders our 
ability to comprehensively manage the water resources of the basin and 
fulfill our regulatory and planning functions.
    It is, therefore, appropriate for the Commission to act to address 
this knowledge gap as no other jurisdiction is solely capable of 
insuring the effectuation of the comprehensive plan. In these 
regulations the Commission is proposing a mechanism for acquiring 
accurate water use and withdrawal information for grandfathered 
projects through a required registration program. It is imperative that 
we have no misrepresentations about the sustainability of our water 
supply so that sound water resource decisions can be made for the 
benefit of all the basin's users. Grandfathered uses and withdrawals 
represent a longstanding gap in knowledge and, as such, have 
increasingly become a water management issue in the Commission's 
regulation and planning for water resources development.
    Registration of grandfathered uses and withdrawals will 
definitively answer questions about the number of grandfathered 
projects, the locations of their sources, how much water they are 
withdrawing and from which water

[[Page 64814]]

bodies and aquifers, and how much of that water they are using 
consumptively. In short, it will allow water resource decisions to be 
made with more certainty and confidence. The registration requirements 
proposed do not require review and approval of dockets under Sec.  
806.4 and do not add any new pathways for a grandfathered project to be 
subject to review and approval if it registers in accordance with the 
proposed regulation.
    The Commission expects the registration of grandfathered uses will 
achieve a number of crucial goals to allow better management of basin 
resources. The Commission will receive more consistent and complete 
data than what can be obtained through voluntary registration programs, 
such as peak quantities, patterns of usage and accurate locational data 
for withdrawals and uses. The data required for registration is more 
easily attainable data from the most recent five years, as opposed to 
historical data. This data will be more recent and based on more 
accurate and reliable metering and measurement devices. Registration 
will eliminate legacy issues by closing the knowledge gap about 
grandfathered withdrawals from and usage of the water resources of the 
basin. The information obtained through the registration will allow the 
Commission staff to conduct thorough water availability analyses.
    Registration will also provide more direct benefits to the 
grandfathered projects by providing the Commission with complete, 
contemporary withdrawal and usage data that can be utilized by the 
Commission in evaluating new withdrawals or consumptive uses in the 
watersheds where the grandfathered projects operate and allow the 
Commission to better prevent impacts and interference to the operations 
of grandfathered projects by newer projects. Registration will also 
provide unambiguous determinations concerning pre-regulation quantities 
of withdrawals and consumptive uses in the basin for both project 
sponsors and the Commission, providing much more certainty with regards 
to how a grandfathered project may operate and retain their existing 
exempt status and avoid the full project review and approval process. 
As such, project sponsors can plan and anticipate when they might fall 
under the Commission's jurisdiction and avoid situations where they 
unknowingly could fall into noncompliance, as currently happens.
    Registration also should provide for ongoing information concerning 
contemporary water withdrawals and uses at grandfathered projects, to 
meet Commission management goals of the Comprehensive Plan, including:
     Supporting water conservation measures through monitoring 
and reporting data;
     Making informed regulatory decisions about cumulative 
effect on other uses/withdrawals, including analyses for low flow 
protection (passby flows) and consumptive use mitigation;
     Projecting future water availability to support and inform 
development decisions, including siting of new facilities critical for 
water supply, energy development and industrial needs; and
     Identifying critical water planning areas where potential 
shortages due to drought are projected or intense competition among 
water users exists.
    Registration of grandfathered projects allows the Commission to 
continue to allow those projects to receive the exemption from the 
Commission's review and approval under Sec.  806.4 but also fulfills 
the Commission's need to have accurate, current and reliable data on 
the amount of the water withdrawals and consumptive use of 
grandfathered projects to use in the Commission's management decisions 
for the water resources of the basin. Registration is a one-time event 
that allows a grandfathered project to continue to operate under the 
exemption from the Commission's regulations for review and approval of 
projects, and the only ongoing obligation of project registration is to 
periodically report withdrawal and usage data. Registration is not 
review and approval of the project and the proposed rulemaking does not 
eliminate the grandfathering exemption for projects that register. This 
means a grandfathered project will not need to meet the requirements 
and standards set forth in part 806, subparts A through D, which 
include making an application to Commission, conducting an aquifer test 
for groundwater withdrawals, evaluation for the sustainability of water 
withdrawals, evaluation of impact on surface water features, wetlands, 
other water supplies and wells, establishment of passby flows to 
protect surface waters, imposition of mitigation for withdrawals or 
consumptive use, or imposition of conditions or limits on the 
grandfathered withdrawal or consumptive use. In addition, the 
Commission has designed the registration to be as simple and accessible 
as possible to greatly minimize costs, and/or eliminate the need for a 
grandfathered project to engage a consultant to complete the 
registration process.

New Subpart E and Revisions to 18 CFR 806.4--Registration of 
Grandfathered Projects

    New subpart E sets forth the rules related to registration of 
grandfathered projects.
    Section 806.40 defines the grandfathered projects within the scope 
of the regulations and registration requirement.
    Section 806.41 provides that grandfathered projects must register 
within a two-year window or they become subject to review and approval 
by the Commission in accordance with the Commission's project review 
regulations and standards. The proposal also contains corresponding 
changes in Sec.  806.4(a)(1)(iii) and (a)(2)(iv) to clearly provide 
when a project with some grandfathered aspect or element is subject to 
review and approval.
    The proposed regulations in Sec. Sec.  806.40(b) and 806.41(c) do 
not protect grandfathered projects that can be shown to have clearly 
lost grandfathered status under the regulations in effect at the time 
the relevant action took place. For example, a grandfathered project 
that underwent a change of ownership, but did not seek review and 
approval as required by the Sec. Sec.  806.4 and 806.6, is not eligible 
to register and will be required to submit an application for review 
and approval of the project.
    Other projects that have a grandfathered aspect, but that do not 
withdraw or use water at a jurisdictional threshold to qualify as a 
grandfathered project under Sec.  806.40, are not eligible to register 
and will be subject to review and approval if those projects ever 
withdraw or consumptively use water above the jurisdictional 
thresholds, pursuant to Sec. Sec.  806.4(a)(1)(iii)(B), 
806.4(a)(2)(iv)(B), and 806.40(c).
    Paragraph 806.41(e) provides that the Commission may establish fees 
in accordance with Sec.  806.35. The Commission will establish any 
registration fee simultaneously at the time of the adoption of a final 
rule. Because the amount of any fee will likely be of interest to the 
public, the Commission, in conjunction with this proposed rulemaking, 
is proposing a staggered fee for registration. Section 806.41(a) 
establishes a two-year window during which grandfathered projects must 
register. The Commission proposes that project sponsors that submit 
their registration within the first 6 months of that two-year 
registration period will pay no fee. During the next 6 months of the 
registration period, the fee will be $500. During the last year of the 
registration period, the fee will be

[[Page 64815]]

$1,000. The registration fee is a one-time fee. By providing a no fee 
option during the first six months of the registration period, the 
Commission intends to provide relief for project sponsors that may be 
concerned about payment of a registration fee and to incentivize 
project sponsors to register sooner which will lead to an earlier 
submission of the data that the Commission is seeking through the 
registration process.
    Section 806.42 outlines the primary information needs of the 
Commission for registration of withdrawals and consumptive uses. 
Because of the problems frequently encountered with producing reliable 
historical data, paragraph 806.42(a)(6) requests the most recent five 
years of quantity data for a project's withdrawals and consumptive use 
for at least the past five calendar years.
    Section 806.43 provides that the Commission shall review the 
project's current metering and monitoring for its grandfathered 
withdrawals and consumptive uses. The Commission may require the 
project to follow a metering and monitoring plan to ensure that 
withdrawal and use quantities are accurate and reliable. This section 
also provides for ongoing reporting of quantities for grandfathered 
withdrawals and consumptive uses. The Commission may accept quantities 
reported under the requirements of the applicable member jurisdiction 
in lieu of additional monitoring data. This information is vital to the 
Commission in its ongoing evaluation of the water resources of the 
basin and will be used in revising the Commission's Comprehensive Plan, 
in its ongoing evaluation of cumulative water use in the basin and to 
provide data to assess and evaluate impacts of new projects seeking 
review and approval by the Commission.
    Sections 806.44 and 806.45 provide a process for the determination 
of grandfathered quantities for withdrawals and consumptive uses. This 
determination will be made by the Executive Director taking into 
account the most reliable data. An increase above this amount would 
require review and approval under Sec. Sec.  806.4(a)(1)(iii)(A) and 
806.4(a)(2)(iv)(A). A project will be able to appeal this determination 
to the Commission. Any hearing conducted will be done in accordance 
with the Commission's appeal procedures in Part 808.

Project Review Application Procedures--18 CFR Subpart B

    Section 806.11 is revised to include a specific reference to Sec.  
801.12(c)(2), noting that preliminary consultations, or pre-application 
meetings, are encouraged but not mandatory except for electric power 
generation projects.
    Section 806.12 is revised to clarify when project sponsors will 
perform a constant-rate aquifer test and to clarify that reviews of 
aquifer test plan submittals are subject to termination of review under 
Sec.  806.16.
    Section 806.14 detailing the contents of applications to the 
Commission is rewritten. The new section as proposed better aligns to 
the actual items sought in the Commission's applications, as well as 
provides required items specific to each type of approval (i.e., 
groundwater withdrawal, surface water withdrawal, consumptive use). The 
proposed regulation includes new requirements specific to projects such 
as mine and construction dewatering, water resources remediation, and 
gravity-drained acid mine drainage (AMD) remediation facilities to 
align with the newly proposed standards for these types of projects 
under Sec.  806.23(b)(5). The proposal also includes specific 
requirements for renewal applications.
    This section as rewritten retains the requirement for an 
alternatives analysis for new projects, if prompted by a request from 
the Commission. However, for new surface water withdrawal projects, an 
alternatives analysis must be performed in settings with a drainage 
area of 50 miles square or less, or in a waterway with exceptional 
water quality.
    Section 806.15 regarding notice requirements for applications is 
revised to provide notice to appropriate county agencies, removing the 
specific reference to county planning agencies. Appropriate county 
agencies include the county governing body, county planning agencies 
and county conservation districts. Section 806.15(b)(3) is added to 
allow the Commission or Executive Director to allow notification of 
property owners by other means where the property is served by a public 
water supply.

Standards for Review and Approval--18 CFR Subpart C

    Section 806.21 is revised to mention that a project must be 
``feasible'' to align it with the standard presently used for projects 
during review to determine that they are feasible from both a financial 
and engineering perspective.
    Section 806.22 regarding standards for the consumptive use of water 
is revised. The proposed revisions lower the 90-day standard for 
consumptive use mitigation to 45 days and require a mitigation plan 
that can have several elements and encourages blended mitigation 
options. The purpose of these changes is to reduce the barriers to 
project sponsors finding their own mitigation and to correspondingly 
reduce the number of projects paying the consumptive use mitigation 
fee. Analysis of the past 100 plus years of river flow records show 
that the overwhelming majority of low flow/drought events in the Basin 
are adequately covered by a 45-day consumptive use mitigation standard.
    Section 806.22(b) is also revised to clarify that when a project is 
subject to review and approval and also has an element of pre-compact 
consumptive use, the project sponsor will be required to provide 
mitigation going forward for this consumptive use if the project is 
located in a water critical area. The location of a project in a water 
critical area will also be a factor used by the Commission in 
determining the manner of acceptable mitigation under paragraph (c). A 
definition of water critical area is included in Sec.  806.3 that will 
rely on both the existing member jurisdiction designations and the 
ongoing efforts by the Commission to identify areas where water 
resources are limited or the demand for water has exceeded or is close 
to exceeding the sustainable supply. Any action to identify a water 
critical area will be taken by a separate action of the Commission and 
may be subject to a public hearing under the revisions to Sec.  
808.1(b)(4).
    Paragraph 806.22(e)(1) is amended to allow a project sourced by 
more than one public water supply to be eligible for an Approval by 
Rule for consumptive use as long as the public water supplies are the 
sole source of water for the project. New Sec.  806.22(e)(2) and (3) 
were added so both the Approvals by Rule in paragraph (e) and (f) had 
matching procedures. The time frame for making notice was extended to 
20 days in Sec.  806.22(f)(3) to match the changes previously made to 
Sec.  806.15, related to notice, during the last Commission rulemaking.
    Section 806.23 related to standards for withdrawals is amended to 
include elements that presently form the basis of conditions to 
approvals for withdrawals. The proposal clarifies that the Commission 
can establish conditions based on the project's effect on groundwater 
and surface water availability, including cumulative uses and effects 
on wetlands. This section is clarified to expressly include the 
Commission's practice of establishing and requiring a total system 
limit on projects.
    A new Sec.  806.23(b)(5) is added to provide special review 
provisions for

[[Page 64816]]

projects consisting of mine dewatering, water resources remediation, 
and gravity-drained AMD facilities. Because the nature of these types 
of facilities is fundamentally different from the other withdrawal 
projects that come before the Commission and because they are heavily 
regulated by our member jurisdictions, the Commission may appropriately 
limit consideration of adverse impacts of these projects on groundwater 
availability, causing permanent loss of aquifer storage and lowering of 
groundwater levels.

Hearings and Enforcement Actions--Part 808

    Section 808.1 is revised. The revised section in paragraph (a) 
identifies those actions that must have a public hearing pursuant to 
the Susquehanna River Basin Compact. Paragraph (b) outlines all other 
instances when the Commission may hold a hearing. No changes are 
contemplated to how the Commission currently conducts its hearings. 
Paragraphs (c) through (h) are revised to both update the regulations 
and also to reflect the Commission's current public hearing procedures.
    Section 808.2 is revised to amend the scope and procedure for 
administrative appeals to the Commission. The non-mandatory appeal 
language is removed and paragraph (a) is revised to provide a mandatory 
appeal to the Commission of a final action or decision made by the 
Executive Director, including a non-exclusive list of appealable 
actions. Where the Commission itself takes a final action, including 
actions or decisions it makes on appeal of Executive Director actions, 
those decisions c must be appealed to the appropriate federal district 
court in accordance with the provisions of section 3.10 of the Compact. 
This section also clarifies that the Commission will determine the 
manner in which it will hear an appeal, including whether a hearing is 
granted or whether the issue will be decided through submission of 
briefs.
    Section 808.11 is revised to expressly recognize directives issued 
from Commission staff.
    Section 808.14 is revised to provide the Executive Director broader 
authority to issue compliance orders. These orders would be appealable 
to the Commission. Paragraph (e) is added to expressly recognize 
Consent Orders and Agreements in the regulations. These agreements are 
vital to the Commission in fulfilling its compliance and enforcement 
obligations under the Compact and allow for a constructive resolution 
of most enforcement actions.
    Section 808.15 is revised to allow the Executive Director to 
determine the appropriateness of a civil penalty in the first instance 
in a show cause proceeding. Any decision of the Executive Director is 
appealable to the Commission. Paragraph (c) is added to reflect the 
Commission's intent that any finding regarding the imposition of a 
civil penalty by the Executive Director shall be based on the relevant 
policies and guidelines adopted by the Commission, as well as the 
relevant law and facts and information presented as a part of the show 
cause proceeding.
    Section 808.16 regarding civil penalty criteria is revised to be 
consistent with other changes in this proposed rulemaking, as well as 
add a new factor regarding the punitive effect of a civil penalty on a 
violator.
    Section 808.17 is revised to be consistent with other changes in 
the proposed rulemaking.
    Section 808.18 is revised to allow the Executive Director to enter 
into settlement agreements to resolve enforcement actions. Currently 
all settlement agreements must be brought to the Commission for 
approval at the Commission's quarterly meeting with the exception of 
settlements under $10,000 pursuant to Commission Resolution 2014-15. 
The revision provides greater authority for the Executive Director to 
approve settlement agreements, but retains the ability of the 
Commission to require certain types of settlements to be submitted for 
the Commission's approval through adoption of a Resolution.

Miscellaneous Changes

    Section 806.1 is revised to include diversions within the scope of 
Part 806, which was an omission. The address of the Commission is also 
updated.
    Section 806.3 related to definitions is revised. The definition of 
facility is revised to include consumptive use, which was an omission. 
The definition of production fluids is revised to include other fluids 
associated with the development of natural gas resources. The 
Commission routinely receives questions regarding other fluids, such as 
stormwater captured and stored in a drilling rig apparatus, and what 
rules apply to such water. The Commission is electing to treat all such 
water as a production fluid to ensure it is accounted for. A definition 
of wetland is added that mirrors the definition used by the U.S. Army 
Corps of Engineers for its regulatory program.
    Section 806.4 related to projects requiring review and approval is 
revised, in addition to the changes discussed regarding new subpart E. 
Paragraph (a) is revised to clarify that aquifer testing pursuant to 
Sec.  806.12 is not a project governed by Sec.  806.4. Paragraph 
(a)(2), related to the regulation of withdrawals, is revised to clarify 
that a project includes all of its sources and to include a reference 
to the general project review standards in Sec.  806.21.
    A new paragraph (a)(3)(vii) is added to allow flowback and 
production fluids into the basin for in-basin treatment or disposal. 
The Commission does not want its regulations to be a disincentive to 
treatment of flowback where the activity is conducted in accordance 
with the environmental standards and requirements of its member 
jurisdictions.
    Section 806.30 related to monitoring is revised and clarified. The 
revisions provide that measuring, metering or monitoring devices must 
be installed per the specifications and recommendations of the device's 
manufacturer. The revisions clarify that the Commission may require 
measurement of groundwater levels in wells other than production wells 
and may require other monitoring for environmental impacts.
    Section 806.31 related to the term of approvals is revised to 
provide that if a project sponsor submits an application one month 
prior to the expiration of an ABR or NOI approval, the project sponsor 
may continue to operate under the expired approval while the Commission 
reviews the application. In the Commission's experience, the six month 
time frame currently in the regulation and still applicable to existing 
Commission docket approvals is longer than necessary for ABR approvals.

Transition Issues

    The Commission is contemplating that all changes proposed in this 
rulemaking will take effect immediately upon publication in the Federal 
Register, with the exception of the adoption of Subpart E (related to 
registration of grandfathered projects) and the corresponding changes 
to Sec.  806.4(a)(1)(iii) and (a)(2)(iv), which would be effective six 
months after the date of publication in the Federal Register.

List of Subjects in 18 CFR Parts 806 and 808

    Administrative practice and procedure, Water resources.

    Accordingly, for the reasons set forth in the preamble, the 
Susquehanna River Basin Commission proposes to amend 18 CFR parts 806 
and 808 as follows:

[[Page 64817]]

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, Public Law 
91-575, 84 Stat. 1509 et seq.

0
2. Amend Sec.  806.1 by revising paragraphs (a) and (f) to read as 
follows:


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, the consumptive use of water, and 
diversions. 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.
* * * * *
    (f) Any Commission forms or documents referenced in this part may 
be obtained from the Commission at 4423 North Front Street, Harrisburg, 
PA 17110, or from the Commission's Web site at http://www.srbc.net.
0
3. In Sec.  806.3:
0
a. Revise the definitions for ``Facility'' and ``Production fluids''; 
and
0
b. Add, in alphabetical order, definitions for ``Water critical area'' 
and ``Wetland''.
    The revisions and additions read as follows:


Sec.  806.3  Definitions.

* * * * *
    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, consumptive use, 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.
* * * * *
    Production fluids. Water or formation fluids recovered at the 
wellhead of a producing hydrocarbon well as a byproduct of the 
production activity or other fluids associated with the development of 
natural gas resources.
* * * * *
    Water critical area. A watershed or sub-watershed identified by the 
Commission where there are significantly limited water resources, where 
existing or future demand for water exceeds or has the potential to 
exceed the safe yield of available surface water and/or groundwater 
resources, or where the area has been identified or designated by a 
member jurisdiction as requiring more intensive water planning.
* * * * *
    Wetlands. Those areas that are inundated or saturated by surface or 
groundwater at a frequency and duration sufficient to support, and that 
under normal circumstances do support, a prevalence of vegetation 
typically adapted for life in saturated soil conditions. Wetlands 
generally include swamps, marshes, bogs, and similar areas.
* * * * *
0
4. Amend Sec.  806.4 by revising paragraphs (a) introductory text, 
paragraph (a)(1)(iii), (a)(2) introductory text, and paragraph 
(a)(2)(iv), and adding paragraph (a)(3)(vii) to read as follows:


Sec.  806.4  Projects requiring review and approval.

    (a) Except for activities relating to site evaluation, to aquifer 
testing under Sec.  806.12 or to those activities 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 of 
this part and shall be subject to the applicable standards in subpart C 
of this part.
    (1) * * *
    (iii) With respect to projects that existed prior to January 23, 
1971, any project:
    (A) Registered in accordance with subpart E of this part that 
increases its consumptive use by any amount over the quantity 
determined under Sec.  806.44;
    (B) Increasing its consumptive use to an average of 20,000 gpd or 
more in any consecutive 30-day period; or
    (C) That fails to register its consumptive use in accordance with 
subpart E of this part.
* * * * *
    (2) Withdrawals. Any project, including all of its sources, 
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. Sec.  806.21 and 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 part 801 of this chapter. The taking or 
removal of water by a public water supplier indirectly through another 
public water supply system or another water user's facilities shall 
constitute a withdrawal hereunder.
* * * * *
    (iv) With respect to groundwater projects that existed prior to 
July 13, 1978, surface water projects that existed prior to November 
11, 1995, or projects that existed prior to January 1, 2007, with 
multiple sources involving a withdrawal of a consecutive 30-day average 
of 100,000 gpd or more that did not require Commission review and 
approval, any project:
    (A) Registered in accordance with Subpart E that increases its 
withdrawal by any amount over the quantity determined under Sec.  
806.44;
    (B) Increasing its withdrawal individually or cumulatively from all 
sources to an average of 100,000 gpd or more in any consecutive 30-day 
period; or
    (C) That fails to register its withdrawals in accordance with 
subpart E.
* * * * *
    (3) * * *
    (vii) The diversion of any flowback or production fluids from 
hydrocarbon development projects located outside the basin to an in-
basin treatment or disposal facility authorized under separate 
government approval to accept flowback or production fluids, shall not 
be subject to separate review and approval as a diversion under this 
paragraph, provided the fluids are handled, transported and stored in 
compliance with all standards and

[[Page 64818]]

requirements of the applicable member jurisdiction.
* * * * *
0
5. Amend Sec.  806.11 by revising paragraph (b) to read as follows:


Sec.  806.11  Preliminary consultations.

* * * * *
    (b) Except for project sponsors of electric power generation 
projects under Sec.  801.12(c)(2) of this chapter, preliminary 
consultation is optional for the project sponsor (except with respect 
to aquifer test plans under Sec.  806.12) but shall not relieve the 
sponsor from complying with the requirements of the compact or with 
this part.
0
6. Amend Sec.  806.12 by revising paragraph (a) and adding paragraph 
(f) to read as follows:


Sec.  806.12  Constant-rate aquifer testing.

    (a) Prior to submission of an application pursuant to Sec.  806.13, 
a project sponsor seeking approval for a new groundwater withdrawal, a 
renewal of an expiring groundwater withdrawal, or an increase of a 
groundwater withdrawal shall perform a constant-rate aquifer test in 
accordance with this section.
* * * * *
    (f) Review of submittals under Sec.  806.12 may be terminated by 
the Commission in accordance with the procedures set forth in Sec.  
806.16.
0
7. Revise Sec.  806.14 to read as follows:


Sec.  806.14  Contents of application.

    (a) Applications for a new project or a major modification to an 
existing approved project shall include, but not be limited to, the 
following information and, where applicable, shall be subject to the 
requirements in paragraph (b) of this section and 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) Project location, including latitude and longitude coordinates 
in decimal degrees accurate to within 10 meters, the project location 
displayed on a map with a 7.5-minute USGS topographic base, and 
evidence of legal access to the property upon which the project is 
proposed.
    (3) Project description, including: Purpose, proposed quantity to 
be withdrawn or consumed, if applicable, and identification of all 
water sources related to the project including location and date of 
initiation of each source.
    (4) Anticipated impact of the project, including impacts on 
existing water withdrawals, nearby surface waters, and threatened or 
endangered species and its habitats.
    (5) The reasonably foreseeable need for the proposed quantity of 
water to be withdrawn or consumed, including supporting calculations, 
and the projected demand for the term of the approval.
    (6) A metering plan that adheres to Sec.  806.30.
    (7) Evidence of coordination and compliance with member 
jurisdictions regarding all necessary permits or approvals required for 
the project from other federal, state or local government agencies 
having jurisdiction over the project.
    (8) Project estimated completion date and estimated construction 
schedule.
    (9) Draft notices required by Sec.  806.15.
    (10) The Commission may also require the following information as 
deemed necessary:
    (i) Engineering feasibility;
    (ii) Ability of the project sponsor to fund the project.
    (b) Additional information is required for a new project or a major 
modification to an existing approved project as follows.
    (1) Surface water. (i) Water use and availability.
    (ii) Project setting, including surface water characteristics, 
identification of wetlands, and site development considerations.
    (iii) Description and design of intake structure.
    (iv) Anticipated impact of the proposed project on local flood 
risk, recreational uses, fish and wildlife and natural environment 
features.
    (v) Alternatives analysis for a withdrawal proposed in settings 
with a drainage area of 50 miles square or less, or in a waterway with 
exceptional water quality, or as required by the Commission.
    (2) Groundwater--(i) Constant-rate aquifer tests. With the 
exception of mining related withdrawals solely for the purpose of 
dewatering; construction dewatering withdrawals and withdrawals for the 
sole purpose of groundwater or below water table remediation generally 
which are addressed in paragraph (b)(6) of this section, the project 
sponsor shall provide an interpretative report that includes all 
monitoring and results of a constant-rate aquifer test consistent with 
Sec.  806.12 and an updated groundwater availability estimate if 
changed from the aquifer test plan. The project sponsor shall obtain 
Commission approval of the test procedures prior to initiation of the 
constant-rate aquifer test.
    (ii) Water use and availability.
    (iii) Project setting, including nearby surface water features.
    (iv) Groundwater elevation monitoring plan for all production 
wells.
    (v) Alternatives analysis as required by the Commission.
    (3) Consumptive use. (i) Consumptive use calculations, and a 
mitigation plan consistent with Sec.  806.22(b).
    (ii) Water conservation methods, design or technology proposed or 
considered
    (iii) Alternatives analysis as required by the Commission.
    (4) Into basin diversions. (i) Provide the necessary information to 
demonstrate that the proposed project will meet the standards in Sec.  
806.24(c).
    (ii) Identification of the source and water quality characteristics 
of the water to be diverted.
    (5) Out of basin diversions. (i) Provide the necessary information 
to demonstrate that the proposed project will meet the standards in 
Sec.  806.24(b).
    (ii) Project setting.
    (6) Other projects, including without limitation, mine dewatering, 
construction dewatering, water resources remediation projects, and 
gravity-drained AMD remediation facilities
    (i) In lieu of aquifer testing, report(s) prepared for any other 
purpose or as required by other governmental regulatory agencies that 
provides a demonstration of the hydrogeologic and/or hydrologic effects 
and limits of said effects due to operation of the proposed project and 
effects on local water availability.
    (c) All applications for renewal of expiring approved projects 
shall include, but not be limited to, the following information, and, 
where applicable, shall be subject to the requirements in paragraph (d) 
of this section and 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) Project location, including latitude and longitude coordinates 
in decimal degrees accurate to within 10 meters, the project location 
displayed on map with a 7.5-minute USGS topographic base, and evidence 
of legal access to the property upon which the project is located.
    (3) Project description, to include, but not be limited to: 
Purpose, proposed

[[Page 64819]]

quantity to be withdrawn or consumed if applicable, identification of 
all water sources related to the project including location and date of 
initiation of each source, and any proposed project modifications.
    (4) The reasonably foreseeable need for the requested renewal of 
the quantity of water to be withdrawn or consumed, including supporting 
calculations, and the projected demand for the term of the approval.
    (5) An as-built and approved metering plan.
    (6) Copies of permits from member jurisdictions regarding all 
necessary permits or approvals obtained for the project from other 
federal, state or local government agencies having jurisdiction over 
the project.
    (7) Copy of any approved mitigation or monitoring plan and any 
related as-built for the expiring project.
    (8) Demonstration of registration of all withdrawals or consumptive 
uses in accordance with the applicable state requirements.
    (9) Draft notices required by Sec.  806.15.
    (d) Additional information is required for the following 
applications for renewal of expiring approved projects.
    (1) Surface water. (i) Historic water use quantities and timing of 
use.
    (ii) Changes to stream flow or quality during the term of the 
expiring approval.
    (iii) Changes to the facility design.
    (iv) Any proposed changes to the previously authorized purpose.
    (2) Groundwater--(i) Constant-rate aquifer tests. The project 
sponsor shall provide an interpretative report that includes all 
monitoring and results of any constant-rate aquifer testing previously 
completed or submitted to support the original approval. In lieu of a 
testing report, historic operational data pumping and elevation data 
may be considered. Those projects that did not have constant-rate 
aquifer testing completed for the original approval that was consistent 
with Sec.  806.12 or sufficient historic operational pumping and 
groundwater elevation data may be required to complete constant-rate 
aquifer testing consistent with Sec.  806.12, prepare and submit an 
interpretative report that includes all monitoring and results of any 
constant-rate aquifer test.
    (ii) An interpretative report providing analysis and comparison of 
current and historic water withdrawal and groundwater elevation data 
with previously completed hydro report.
    (iii) Current groundwater availability analysis assessing the 
availability of water during a 1-in-10 year recurrence interval under 
the existing conditions within the recharge area and predicted for term 
of renewal (i.e., other users, discharges, and land development within 
the groundwater recharge area).
    (iv) Groundwater elevation monitoring plan for all production 
wells.
    (3) Consumptive use. (i) Consumptive use calculations, and a copy 
of the approved plan or method for mitigation consistent with Sec.  
806.22.
    (ii) Changes to the facility design;
    (iii) Any proposed changes to the previously authorized purpose;
    (4) Into basin diversion. (i) Provide the necessary information to 
demonstrate that the proposed project will meet the standards in Sec.  
806.24(c).
    (ii) Identification of the source and water quality characteristics 
of the water to be diverted.
    (5) Out of basin diversion. (i) Historic water use quantities and 
timing of use;
    (ii) Changes to stream flow or quality during the term of the 
expiring approval;
    (iii) Changes to the facility design;
    (iv) Any proposed changes to the previously authorized purpose;
    (6) Other projects, including without limitation, mine dewatering, 
water resources remediation projects, and gravity-drained AMD 
facilities
    (i) Copy of approved report(s) prepared for any other purpose or as 
required by other governmental regulatory agencies that provides a 
demonstration of the hydrogeologic and/or hydrologic effects and limits 
of said effects due to operation of the project and effects on local 
water availability.
    (ii) Any data or reports that demonstrate effects of the project 
are consistent with those reports provided in paragraph (d)(6)(i).
    (iii) Demonstration of continued need for expiring approved water 
source and quantity.
    (e) 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.
    (f) 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; and
    (5) Demonstration that the anticipated impact of the requested 
modification will not adversely impact the water resources of the 
basin;
    (g) For any applications, the Executive Director or Commission may 
require other information not otherwise listed in this section.
0
8. Amend Sec.  806.15 by revising paragraph (a), adding paragraph 
(b)(3) and revising paragraph (g) 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 and 
the appropriate county agencies 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
* * * * *
    (b) * * *
    (3) For groundwater withdrawal applications, the Commission or 
Executive Director may allow notification of property owners through 
alternate methods where the property is served by a public water 
supply.
* * * * *
    (g) The project sponsor shall provide the Commission with a copy of 
the United States Postal Service return receipt for the notifications 
to agencies of member States, municipalities and appropriate county 
agencies required under paragraph (a) of this section. The project 
sponsor shall also provide certification on a form provided by the 
Commission that it has published the newspaper notice(s) required by 
this section and made the landowner

[[Page 64820]]

notifications as required under paragraph (b) of this section, if 
applicable. Until these items are provided to the Commission, 
processing of the application will not proceed. The project sponsor 
shall maintain all proofs of publication and records of notices sent 
under this section for the duration of the approval related to such 
notices.
* * * * *
0
9. Amend Sec.  806.21 by revising paragraphs (a) and (c)(1) to read as 
follows:


Sec.  806.21  General standards.

    (a) A project shall be feasible and not be detrimental to the 
proper conservation, development, management, or control of the water 
resources of the basin.
* * * * *
    (c) * * *
    (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 application 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.
* * * * *
0
10. Revise Sec.  806.22 to read as follows:


Sec.  806.22  Standards for consumptive use of water.

    (a) The project sponsors of all consumptive water uses subject to 
review and approval under Sec.  806.4, Sec.  806.5, or Sec.  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, Sec.  806.5, Sec.  
806.6, or Sec.  806.17 of this part shall mitigate such consumptive 
use, including any pre-compact consumptive use if located in a water 
critical area. 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. The Commission 
shall require mitigation in accordance with an approved mitigation 
plan. The proposed mitigation plan shall include the method or 
combination of the following methods of mitigation:
    (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 45 days without impact.
    (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 45 
days without impact.
    (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 (b)(3) of this section 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 all water 
consumptively used over the course of a year, 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, including whether the project is 
located in a water critical area, 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) Except with respect 
to projects involving hydrocarbon development subject to the provisions 
of paragraph (f) of this section, any project who is solely supplied 
water for consumptive use by public water supply may be approved by the 
Executive Director under this paragraph (e) in accordance with the 
following, unless the Executive Director determines that the project 
cannot be adequately regulated under this approval by rule.
    (2) Notification of intent. Prior to undertaking a project or 
increasing a previously approved quantity of consumptive use, the 
project sponsor shall submit a notice of intent (NOI) on forms 
prescribed by the Commission, and the appropriate application fee, 
along with any required attachments.
    (3) Within 20 days after submittal of an NOI under paragraph (f)(2) 
of this section, the project sponsor shall satisfy the notice 
requirements set forth in Sec.  806.15.
    (4) 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.
    (5) Standard conditions. The standard conditions set forth in Sec.  
806.21 shall apply to projects approved by rule.
    (6) Mitigation. The project sponsor shall comply with mitigation in 
accordance with Sec.  806.22 (b)(2) or (3).
    (7) 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.
    (8) The Executive Director may grant, deny, suspend, revoke, modify 
or condition an approval to operate under

[[Page 64821]]

this approval by rule, or renew an existing approval by rule previously 
granted hereunder, and will notify the project sponsor of such 
determination, including the quantity of consumptive use approved.
    (9) Approval by rule shall be effective upon written notification 
from the Executive Director 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.
    (f) Approval by rule for consumptive use related to unconventional 
natural gas and other hydrocarbon development. (1) Any unconventional 
natural gas development project, or any hydrocarbon development project 
subject to review and approval under 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.
    (2) Notification of intent. Prior to undertaking a project or 
increasing a previously approved quantity of consumptive use, the 
project sponsor shall submit a notice of intent (NOI) on forms 
prescribed by the Commission, and the appropriate application fee, 
along with any required attachments.
    (3) Within 20 days after submittal of an NOI under paragraph (f)(2) 
of this section, the project sponsor shall satisfy the notice 
requirements set forth in Sec.  806.15.
    (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 gas well, per day, for well drilling, hydrofracture 
stimulation, hydrostatic testing, and dust control. 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.
    (5) The project sponsor shall comply with the mitigation 
requirements set forth in Sec.  806.22(b).
    (6) Any flowback or production fluids utilized by the project 
sponsor for hydrofracture stimulation undertaken at the project shall 
be separately accounted for, but shall not be included in the daily 
consumptive use amount calculated for the project, or be subject to the 
mitigation requirements of Sec.  806.22(b).
    (7) 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 Executive 
Director reserves the right to modify, suspend or revoke any approval 
under this paragraph (f) if the project sponsor fails to obtain or 
maintain such approvals.
    (8) The project sponsor shall certify to the Commission that all 
flowback and production fluids have been re-used or treated and 
disposed of in accordance with applicable state and federal law.
    (9) The Executive Director may grant, deny, suspend, revoke, modify 
or condition an approval to operate under this approval by rule, or 
renew an existing approval by rule granted hereunder, and will notify 
the project sponsor of such determination, including the sources and 
quantity of consumptive use approved. The issuance of any approval 
hereunder shall not be construed to waive or exempt the project sponsor 
from obtaining Commission approval for any water withdrawals or 
diversions subject to review pursuant to Sec.  806.4(a). Any sources of 
water approved pursuant to this section shall be further subject to any 
approval or authorization required by the member jurisdiction.
    (10) Approval by rule shall be effective upon written notification 
from the Executive Director to the project sponsor, shall expire five 
years from the date of such notification, 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, for unconventional 
natural gas development or hydrocarbon development, whichever is 
applicable, 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:
    (i) Tophole water encountered during the drilling process, provided 
it is used only for drilling or hydrofracture stimulation.
    (ii) Precipitation or stormwater collected on the drilling pad 
site, provided it is used only for drilling or hydrofracture 
stimulation.
    (iii) Drilling fluids, formation fluids, flowback or production 
fluids obtained from a drilling pad site, production well site or 
hydrocarbon water storage facility, provided it is used only for 
hydrofracture stimulation, and is handled, transported and stored in 
compliance with all standards and requirements of the applicable member 
jurisdiction.
    (iv) Water obtained from a hydrocarbon water storage facility 
associated with an approval issued by the Commission pursuant to Sec.  
806.4(a) or by the Executive Director pursuant to this section, 
provided it is used only for the purposes authorized therein, and in 
compliance with all standards and requirements of the applicable member 
jurisdiction.
    (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 unconventional natural gas development, or 
hydrocarbon development, whichever is applicable, 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.
    (13) A project sponsor issued an approval by rule pursuant to 
paragraph (f)(9) of this section may also utilize other sources of 
water, including but not limited to, public water supply or wastewater 
discharge not otherwise associated with an approval issued by the 
Commission pursuant to Sec.  806.4(a) or an approval by rule issued 
pursuant to paragraph (f)(9) of this section, provided such sources are 
first approved by the Executive Director. Any request for approval 
shall be submitted on a form and in the manner prescribed by the 
Commission, shall satisfy the notice requirements set forth in Sec.  
806.15, and shall be subject to review pursuant to the standards set 
forth in subpart C of this part.
    (14) A project sponsor issued an approval by rule pursuant to 
paragraph (f)(9) of this section may utilize water obtained from a 
hydrocarbon water storage facility that is not otherwise associated 
with an approval issued by the Commission pursuant to Sec.  806.4(a), 
or an approval by rule issued pursuant to paragraph (f)(9) of this 
section, provided such sources are first approved by the Executive 
Director and are constructed and maintained in compliance with all 
standards and requirements of the applicable member jurisdiction. The 
owner or operator of any such facility shall submit a request for 
approval on a form and in the manner prescribed by the Commission,

[[Page 64822]]

shall satisfy the notice requirements set forth in Sec.  806.15, and 
shall be subject to review pursuant to the standards set forth in 
subpart C of this part.
    (15) The project sponsor shall provide a copy of any registration 
or source approval issued pursuant to this section to the appropriate 
agency of the applicable member jurisdiction. The project sponsor shall 
record on a daily basis, and report quarterly on a form and in a manner 
prescribed by the Commission, the quantity of water obtained from any 
source registered or approved hereunder. Any source approval issued 
hereunder shall also be subject to such monitoring and reporting 
requirements as may be contained in such approval or otherwise required 
by this part.
0
11. Amend Sec.  806.23 by revising paragraphs (b)(2) and (b)(3)(i) and 
adding paragraph (b)(5) to read as follows:


Sec.  806.23  Standards for water withdrawals.

* * * * *
    (b) * * *
    (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; 
groundwater and surface water availability, including cumulative uses; 
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; affecting wetlands; or affecting low flow of perennial or 
intermittent streams.
    (3) * * *
    (i) Limit the quantity, timing or rate of withdrawal or level of 
drawdown, including requiring a total system limit.
* * * * *
    (5) For projects consisting of mine dewatering, water resources 
remediation, and gravity-drained AMD facilities, review of adverse 
impacts will have limited consideration of groundwater availability, 
causing permanent loss of aquifer storage and lowering of groundwater 
levels provided these projects are operated in accordance with the laws 
and regulations of the member jurisdictions.
0
12. Amend Sec.  806.30 by revising the introductory text and revising 
paragraph (a)(4) and adding paragraph (a)(8) to read as follows:


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, 
and installed per the specifications and recommendations of the 
manufacturer of the device, and shall be subject to inspection by the 
Commission at any time.
    (a) * * *
    (4) Measure groundwater levels in all approved production and other 
wells, as specified by the Commission.
* * * * *
    (8) Perform other monitoring for impacts to water quantity, water 
quality and aquatic biological communities, as specified by the 
Commission.
* * * * *
0
13. Amend Sec.  806.31 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  806.31  Term of approvals.

* * * * *
    (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 revoke 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 docket approval or no later than one month prior to the 
expiration of its existing ABR or NOI 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 provides otherwise.
0
14. Add subpart E to read as follows:

Subpart E--Registration of Grandfathered Projects

Sec.
806.40 Applicability.
806.41 Registration and eligibility.
806.42 Registration requirements.
806.43 Metering and monitoring requirements.
806.44 Determination of grandfathered quantities.
806.45 Appeal of determination.


Sec.  806.40  Applicability.

    (a) This subpart is applicable to the following projects, which 
shall be known as grandfathered projects:
    (1) The project has an associated average consumptive use of 20,000 
gpd or more in any consecutive 30-day period all or part of which is a 
pre-compact consumptive use that has not been approved by the 
Commission pursuant to Sec.  806.4.
    (2) The project has an associated groundwater withdrawal average of 
100,000 gpd or more in any consecutive 30-day period all or part of 
which was initiated prior to July 13, 1978, that has not been approved 
by the Commission pursuant to Sec.  806.4.
    (3) The project has an associated surface water withdrawal average 
of 100,000 gpd or more in any consecutive 30-day period all or part of 
which was initiated prior to November 11, 1995, that has not been 
approved by the Commission pursuant to Sec.  806.4.
    (4) The project (or an element of the project) has been approved by 
the Commission but has an associated consumptive use or water 
withdrawal that has not been approved by the Commission pursuant to 
Sec.  806.4.
    (5) Any project not included in paragraphs (a)(2) through (4) of 
this section that has a total withdrawal average of 100,000 gpd or more 
in any consecutive 30-day average from any combination of sources which 
was initiated prior to January 1, 2007, that has not been approved by 
the Commission pursuant to Sec.  806.4.
    (6) Any source associated with a project included in paragraphs 
(a)(2) through (5) of this section regardless of quantity.
    (b) A project, including any source of the project, that can be 
determined to have been required to seek Commission review and approval 
under the pertinent regulations in place at the time is not eligible 
for registration as a grandfathered project.


Sec.  806.41  Registration and eligibility.

    (a) Projects sponsors of grandfathered projects identified in Sec.  
806.40 shall submit a registration to the Commission, on a form and in 
a manner prescribed by the Commission, within two years of the 
effective date of this regulation.
    (b) Any grandfathered project that fails to register under 
paragraph (a) of this section shall be subject to Commission's review 
and approval under Sec.  806.4.
    (c) Any project that is not eligible to register under paragraph 
(a) of this section shall be subject to Commission's review and 
approval under Sec.  806.4.

[[Page 64823]]

    (d) The Commission may establish fees for obtaining and maintaining 
registration in accordance with Sec.  806.35.
    (e) A registration under this subpart may be transferred pursuant 
to Sec.  806.6.


Sec.  806.42  Registration requirements.

    (a) Registrations shall include the following information:
    (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 the project and site in terms of:
    (i) Project location, including latitude and longitude coordinates 
in decimal degrees accurate to within 10 meters.
    (ii) Project purpose.
    (3) Identification of all sources of water, including the date the 
source was put into service, each source location (including latitude 
and longitude coordinates in decimal degrees accurate to within 10 
meters), and if applicable, any approved docket numbers.
    (4) Identification of current metering and monitoring methods for 
water withdrawal and consumptive use.
    (5) Identification of current groundwater level or elevation 
monitoring methods at groundwater sources.
    (6) All quantity data for water withdrawals and consumptive use for 
a minimum of the previous five calendar years. If quantity data are not 
available, any information available upon which a determination of 
quantity could be made.
    (7) For consumptive use, description of processes that use water, 
identification of water returned to the Basin, history of the use, 
including process changes, expansions and other actions that would have 
an impact on the amount of water consumptively used during the past 
five calendar years.
    (8) Based on the data provided, the quantity of withdrawal for each 
individual source and consumptive use the project sponsor requests to 
be grandfathered by the Commission.
    (9) Any ownership or name changes to the project since January 1, 
2007.
    (b) The Commission may require any other information it deems 
necessary for the registration process.


Sec.  806.43  Metering and monitoring requirements.

    (a) As a part of the registration process, the Commission shall 
review the current metering and monitoring for grandfathered 
withdrawals and consumptive uses.
    (b) The Commission may require a metering and monitoring plan for 
the project sponsor to follow.
    (c) Project sponsors, as an ongoing obligation of their 
registration, shall report to the Commission all information specified 
in the grandfathering determination under Sec.  806.44 in a form and 
manner determined by the Commission. If quantity reporting is required 
by the member jurisdiction where the project is located, the Commission 
may accept that reported quantity to satisfy the requirements of this 
paragraph.


Sec.  806.44  Determination of grandfathered quantities.

    (a) For each registration submitted, the Executive Director shall 
determine the grandfathered quantity for each withdrawal source and 
consumptive use.
    (b) In making a determination, the following factors should be 
considered:
    (1) The most recent withdrawal and use data;
    (2) The reliability and accuracy of the data and/or the meters or 
measuring devices;
    (3) Determination of reasonable and genuine usage of the project, 
including any anomalies in the usage; and
    (4) Other relevant factors.


Sec.  806.45  Appeal of determination.

    (a) A final determination of the grandfathered quantity by the 
Executive Director must be appealed to the Commission within 30 days 
from actual notice of the determination.
    (b) The Commission shall appoint a hearing officer to preside over 
appeals under this section. Hearings shall be governed by the 
procedures set forth in part 808 of this chapter.

PART 808--HEARINGS AND ENFORCEMENT ACTIONS

0
15. The authority citation for part 808 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.
0
16. Revise Sec.  808.1 to read as follows:


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) Review and approval of diversions.
    (3) Imposition or modification of rates and charges.
    (4) Determination of protected areas.
    (5) Drought emergency declarations.
    (6) Hearing requested by a member jurisdiction.
    (7) As otherwise required by sections 3.5(4), 4.4, 5.2(e), 6.2(a), 
8.4, and 10.4 of the compact.
    (b) A public hearing may be conducted by the Commission or the 
Executive Director in any form or style chosen by the Commission or 
Executive Director in the following instances:
    (1) Proposed rulemaking.
    (2) Consideration of projects, except projects approved pursuant to 
memoranda of understanding with member jurisdictions.
    (3) Adoption of policies and technical guidance documents.
    (4) Identification of a water critical area.
    (5) When it is determined that a hearing is necessary to give 
adequate consideration to issues related to public health, safety and 
welfare, or protection of the environment, or to gather additional 
information for the record or consider new information on a matter 
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 of general 
circulation in the area affected. In all other cases, at least 20 days 
prior to the hearing, notice shall be posted on the Commission Web 
site, sent to the parties who, to the Commission's knowledge, will 
participate in the hearing, and sent to persons, organizations and news 
media who have made requests to the Commission for notices of hearings 
or of a particular hearing. With regard to rulemaking, hearing 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 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 may be any person, including a project 
sponsor, wishing to appear at the hearing and make an oral or written 
statement. 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 10 days or a 
reasonable time thereafter as may be specified by the presiding 
officer.
    (2) Participants are encouraged to file with the Commission at its 
headquarters

[[Page 64824]]

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.
    (f) Description of project. When notice of a public hearing is 
issued, there shall be available for inspection, consistent with the 
Commission's Access to Records Policy, 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 or Executive Director. 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. 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.
0
17. Revise Sec.  808.2 to read as follows:


Sec.  808.2  Administrative appeals.

    (a) A project sponsor or other person aggrieved by a final action 
or decision of the Executive Director shall file a written appeal with 
the Commission within 30 days of the receipt of actual notice by the 
project sponsor or within 30 days of publication of the action on the 
Commission's Web site or in the Federal Register. Appeals shall be 
filed on a form and in a manner prescribed by the Commission and the 
petitioner shall have 20 days from the date of filing to amend the 
appeal. The following is a non-exclusive list of actions by the 
Executive Director that are subject to an appeal to the Commission:
    (1) A determination that a project requires review and approval 
under Sec.  806.5 of this chapter;
    (2) An approval or denial of an application for transfer under 
Sec.  806.6 of this chapter;
    (3) An approval of a Notice of Intent under a general permit under 
Sec.  806.17 of this chapter.
    (4) An approval of a minor modification under Sec.  806.18 of this 
chapter; and
    (5) A determination regarding an approval by rule under Sec.  
806.22(e) or (f) of this chapter;
    (6) A determination regarding an emergency certificate under Sec.  
806.34 of this chapter;
    (7) Enforcement orders issued under Sec.  808.14;
    (8) A finding regarding a civil penalty under Sec.  808.15(c);
    (9) A determination of grandfathered quantity under Sec.  806.44 of 
this chapter;
    (10) A decision to modify, suspend or revoke a previously granted 
approval;
    (11) A records access determination made pursuant to Commission 
policy;
    (b) The appeal shall identify the specific action or decision being 
appealed, the date of the action or decision, the interest of the 
person requesting the hearing in the subject matter of the appeal, and 
a statement setting forth the basis for objecting to or seeking review 
of the action or decision.
    (c) Any request not filed on or before the applicable deadline 
established in paragraph (a) of this section hereof will be deemed 
untimely and such request for a hearing shall be considered denied 
unless the Commission, upon written request and for good cause shown, 
grants leave to make such filing nunc pro tunc; the standard applicable 
to what constitutes good cause shown being the standard applicable in 
analogous cases under Federal law. 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) Petitioners shall be limited to a single filing that shall set 
forth all matters and arguments in support thereof, including any 
ancillary motions or requests for relief. Issues not raised in this 
single filing shall be considered waived for purposes of the instant 
proceeding. Where the petitioner is appealing a final determination on 
a project application and is not the project sponsor, the petitioner 
shall serve a copy of the appeal upon the project sponsor within five 
days of its filing.
    (e) The Commission will determine the manner in which it will hear 
the appeal. If a hearing is granted, the Commission shall serve notice 
thereof upon the petitioner and project sponsor and shall publish such 
notice in the Federal Register. The hearing shall not be held less than 
20 days after publication of such notice. Hearings may be conducted by 
one or more members of the Commission, or by such other hearing officer 
as the Commission may designate.
    (1) The petitioner 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 member State. The decision of the Executive Director on the 
request for stay shall not be appealable to the Commission under this 
section and shall remain in full force and effect until the Commission 
acts on the appeal.
    (2) 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.
    (ii) The likelihood that the petitioner will prevail.
    (f) 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, or that the Commission has found 
that an administrative review is necessary or desirable. If the 
Commission denies any request for a hearing, the party seeking such 
hearing shall be limited to such remedies as may be provided by the 
compact or other applicable law or court rule. If a hearing 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) If a hearing is not granted, the Commission may set a briefing 
schedule and decide the appeal based on the record before it. The 
Commission may, in its discretion, schedule and hear oral argument on 
an appeal.
    (h) Intervention. (1) A request for intervention may be filed with 
the Commission by persons other than the petitioner within 20 days of 
the publication of a notice of the granting of such hearing in the 
Federal Register. The request for 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. The hearing 
officer(s) shall determine whether the person requesting intervention 
has standing in the matter

[[Page 64825]]

that would justify their admission as an intervener to the proceedings 
in accordance with Federal case law.
    (2) Interveners shall have the right to be represented by counsel, 
to present evidence and to examine and cross-examine witnesses.
    (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.
0
18. Revise Sec.  808.11 to read as follows:


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, staff directives or any other requirement of the 
Commission.
0
19. Revise Sec.  808.14 to read as follows:


Sec.  808.14  Orders.

    (a) Whether or not an NOV has been issued, 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 or other approval, the commissioners or Executive 
Director 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 or Executive Director 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.
    (e) The Commission or Executive Director may enter into a Consent 
Order and Agreement with an alleged violator to resolve non-compliant 
operations and enforcement proceedings in conjunction with or 
separately from settlement agreements under Sec.  808.18.
0
20. Revise Sec.  808.15 to read as follows:


Sec.  808.15  Show cause proceeding.

    (a) The Executive Director may issue an order requiring an alleged 
violator to 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 by which the alleged violator must provide a 
written response to the order.
    (3) Identify the civil penalty recommended by Commission staff.
    (b) The written response by the project sponsor should include the 
following:
    (1) A statement whether the project sponsor contests that the 
violations outlined in the Order occurred;
    (2) If the project sponsor contests the violations, then a 
statement of the relevant facts and/or law providing the basis for the 
project sponsor's position;
    (3) Any mitigating factors or explanation regarding the violations 
outlined in the Order;
    (4) A statement explaining what the appropriate civil penalty, if 
any, should be utilizing the factors at Sec.  808.16.
    (c) Based on the information presented and any relevant policies, 
guidelines or law, the Executive Director shall make a written finding 
affirming or modifying the civil penalty recommended by Commission 
staff.
0
21. Amend Sec.  808.16 by revising paragraph (a) introductory text and 
paragraph (a)(7), adding paragraph (a)(8), and revising paragraph (b) 
to read as follows:


Sec.  808.16  Civil penalty criteria.

    (a) In determining the amount of any civil penalty or any 
settlement of a violation, the Commission and Executive Director shall 
consider:
* * * * *
    (7) The length of time over which the violation occurred and the 
amount of water used, diverted or withdrawn during that time period.
    (8) The punitive effect of a civil penalty.
    (b) The Commission and/or Executive Director retains the right to 
waive any penalty or reduce the amount of the penalty recommended by 
the Commission staff under Sec.  808.15(a)(3) should it be determined, 
after consideration of the factors in paragraph (a) of this section, 
that extenuating circumstances justify such action.
0
22. Revise Sec.  808.17 to read as follows:


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 this part shall 
constitute the penalty amount recommended by the Commission to be fixed 
by the court pursuant to section 15.17 of the compact.
0
23. Revise Sec.  808.18 to read as follows:


Sec.  808.18  Settlement by agreement.

    (a) An alleged violator may offer to settle an enforcement action 
by agreement. The Executive Director may enter into settlement 
agreements to resolve an enforcement action. The Commission may, by 
Resolution, require certain types of enforcement actions or settlements 
to be submitted to the Commission for action or approval.
    (b) In the event the violator fails to carry out any of the terms 
of the settlement agreement, the Commission or Executive Director may 
reinstitute a civil penalty action and any other applicable enforcement 
action against the alleged violator.

    Dated: September 15, 2016.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2016-22668 Filed 9-20-16; 8:45 am]
 BILLING CODE 7040-01-P