[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Rules and Regulations]
[Pages 29387-29397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13324]


=======================================================================
-----------------------------------------------------------------------

SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 806 and 808


Review and Approval of Projects; Hearings and Enforcement Actions

AGENCY: Susquehanna River Basin Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document contains rules that would amend the regulations 
of the Susquehanna River Basin Commission (Commission) to clarify 
application requirements and standards for review of projects, 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.

[[Page 29388]]


DATES: This rule is effective July 1, 2017, except for the amendments 
to Sec.  806.4(a)(1)(iii) and (a)(2)(iv) and the addition of subpart E 
to part 806 which are effective January 1, 2018.

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

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

SUPPLEMENTARY INFORMATION: Notice of proposed rulemaking was published 
in the Federal Register on September 21, 2016 (81 FR 64812); New York 
Register on October 5, 2016; Pennsylvania Bulletin on October 8, 2016; 
and Maryland Register on October 14, 2017. The Commission convened four 
public hearings: On November 3, 2016, in Harrisburg, Pennsylvania; on 
November 9, 2016, in Binghamton, New York; on November 10, 2016, in 
Williamsport, Pennsylvania; and on December 8, 2016, in Annapolis, 
Maryland. A written comment period was held open through January 30, 
2017.
    The Commission received 14 written public comments in addition to 
testimony received at the public hearings. The Commission has prepared 
a comment response document, which is available to the public at 
www.srbc.net. Comments that led to a change to the proposed rulemaking 
and their responses are discussed below.

Registration of Grandfathered Projects, Subpart E and Sec.  
806.4(a)(1)(iii) and (a)(2)(iv)

    Comment: The Commission should allow projects to register a 
grandfathered amount previously determined by the Commission if it is 
not seeking a higher amount through the registration process.
    Response: The Commission agrees that previous grandfathering 
determinations should be honored if the project wishes to register that 
amount. A new paragraph (c) is added in Sec.  806.44 allowing the 
Executive Director to use past grandfathering determinations, and 
revisions are made to Sec.  806.42(b) allowing the Commission to waive 
certain registration information if a project is relying on a past 
grandfathering determination.
    Comment: Ongoing reporting requirements need to be linked to member 
jurisdiction reporting to avoid duplication of effort and confusion.
    Response: The Commission agrees with the commenter that it is 
important to avoid unnecessary duplication of effort with state law 
requirements. Section 806.43(c) notes that if quantity reporting is 
required by the member jurisdiction where the project is located, the 
Commission may accept that reporting to satisfy the requirements of 
this paragraph. This evidences the Commission's intent to use its best 
efforts to accept state reporting requirements where appropriate. The 
Commission will add language to Sec. Sec.  806.42(a)(6) and 806.43(c) 
to clarify its intention to rely on member jurisdiction reporting where 
it is able, and that any additional reporting required will be because 
it is not duplicated by the member jurisdiction. A new Sec.  806.43(d) 
is added to emphasize the commitment of the Commission and its member 
jurisdiction to share all reporting data and to further the goal of 
creating a unified data set for all agencies involved.
    Comment: The proposed rule at Sec.  806.4(a)(1)(iii)(A) and 
(a)(2)(iv)(A) changes the current rule that allows a grandfathered 
consumptive use an additional increase of up to 20,000 gpd and a 
grandfathered withdrawal an additional increase of up to 100,000 gpd 
before review and approval of the grandfathered activity is triggered. 
This leeway should be restored for grandfathered projects.
    Response: In most instances, the registration process will allow 
grandfathered projects sufficient margin for operational flexibility. 
However, the Commission agrees that the registration process should not 
put a project in jeopardy of needing review and approval subsequent to 
registration absent a change to the project. A new factor is added as 
Sec.  806.44(b)(4) that allows the Executive Director to consider 
whether the grandfathered amount includes an operational margin of 
safety.
    Comment: The proposed rule provides that the determination of the 
grandfathered quantity will be based on the most recent data. This may 
be too restrictive and projects should be allowed to submit more than 
the last five years of data and where such data is submitted, the 
Executive Director should base the determination under Sec.  806.44 on 
the peak 30-day average for withdrawals and consumptive uses shown by 
the data.
    Response: The Commission agrees that the factor as written could be 
clarified and the final rule reflects a revision to Sec.  806.44(b)(1) 
to allow more than a minimum of five years of data to be submitted and 
that the Executive Director will consider the withdrawal and use data 
and the peak consecutive 30-day average shown by all the data 
submitted.

Consumptive Use Mitigation, Sec.  806.22

    Comments: The Commission should not adopt the Consumptive Use 
Mitigation Policy and the changes to the Consumptive Use Mitigation 
Rule.
    The Commission should not shift the responsibility for physical 
consumptive use mitigation to project sponsors because project sponsor 
based mitigation will be more balkanized and less effective and the 
Commission has powerful tools to set up projects to provide such 
mitigation from the Compact.
    The mitigation plan proposal should be removed or smaller projects 
should be able to have an abbreviated consumptive use mitigation 
alternative analysis.
    New consumptive use mitigation requirements should not be applied 
retroactively to existing projects upon renewal.
    The proposed rule should be revised to allow greater use of 
groundwater storage and quarries and be more flexible with respect to 
the ``no impacts'' to surface water requirements for such mitigation.
    The Commission should focus its mitigation requirements to the low 
flow period.
    All references to water critical planning areas should be removed. 
Article 11 of the Compact provides for designation of protected areas. 
This concept appears to circumvent those procedures.
    Water critical areas should not be based on member jurisdiction 
planning areas and it should not be a mechanism to require mitigation 
for pre-compact consumptive use.
    Response: The Commission has reviewed the detailed comments 
regarding how the Commission requires consumptive use mitigation and 
the options of projects to provide such mitigation. The Commission will 
further examine and reevaluate its policies and procedures for 
consumptive use and consumptive use mitigation in a more comprehensive 
fashion. As a result, the Commission will not move forward with the 
changes to the Consumptive Use Mitigation Policy and the consumptive 
use mitigation rule as follows. The definition of ``water critical 
area'' in Sec.  806.3 is removed and all references to water critical 
areas are removed from Sec. Sec.  806.22 and 808.1. The reference and 
changes associated with a mitigation plan in Sec.  806.22(b) are 
removed. The

[[Page 29389]]

changes associated with amending the 90 day mitigation requirement to 
45 days in Sec.  806.22(b)(1)(i) and (ii) are removed and reserved for 
the reevaluation process for consumptive use mitigation described 
above.

Project Review Application Procedures and Standards for Review and 
Approval--18 CFR Part 806, Subparts B and C

    Comment: The Commission should clarify how the alternatives 
analysis under Sec.  806.14(b)(2)(v) differs from the previous 
provision in the current rules at Sec.  806.14(b)(1)(iii) and specify 
what is expected from applicants.
    Response: The purpose for this requirement is to document the 
project sponsor's consideration of alternatives during planning of the 
proposed project to include, but not be limited to, identification of 
reasonable alternatives to the proposed water withdrawal project, the 
extent of the project sponsor's economic and technical investigation, 
the adequacy of the source to meet the demand, an assessment of the 
potential environmental impact, and measures for avoidance or 
minimization of adverse impact of each alternative. Specifically, the 
alternatives analysis should include identification of reasonable 
alternative water sources and locations, including opportunities for 
uses of lesser quality waters; project footprint and infrastructure; 
opportunities for water conservation or water saving technology; 
requirements of the uses of the water as related to the proposed 
locations; the economic feasibility of the alternative(s) and technical 
opportunities or limitations identified in the evaluation of reasonable 
alternate sites. The Commission is preparing a draft policy to outline 
how alternative analyses should be conducted and evaluated, and will 
release it for public comment prior to consideration for Commission 
adoption. In addition, on final rulemaking, the Commission will adjust 
the language of Sec.  806.14(b)(1)(v) to make clear that the analysis 
is needed only for new projects and for major modifications that seek 
to increase the surface water withdrawal.
    Comment: The Commission should reconcile the application 
requirements in Sec.  806.14 to recognize that the potential for waiver 
of the aquifer testing requirements in Sec.  806.12.
    Response: The Commission agrees and has revised Sec.  
806.14(b)(2)(i) and (d)(2)(i).
    Comment: The Commission should clarify whether renewals that 
involve a major modification should be handled under the new 
application and major modification standards in Sec.  806.14(a) and (b) 
or in the renewal standards in Sec.  806.14(c) and (d).
    Response: The Commission agrees that the rule should be clarified 
and proposes changes to Sec.  806.14(c) and 806.14(d)(2), (4) and (6) 
to establish that renewal applications, with either minor or major 
modifications, are subject to Sec.  806.14(c) and (d).
    Comment: The Commission should accept other types of certified mail 
proof of delivery beyond the US Postal Service under Sec.  806.15(g).
    Response: The Commission agrees and Sec.  806.15(g) is revised to 
include the verified return delivery receipt from a comparable delivery 
service to the U.S. Postal Service.
    Comment: The Commission should revise Sec.  806.15(b)(3) to clarify 
which property is subject to the notice requirements and should read 
``where the property of such property owner is served by a public water 
supply.''
    Response: The Commission agrees and the final rulemaking is revised 
accordingly.
    Comment: The Commission should exempt AMD passive treatment systems 
from the requirements for mining and construction dewatering under 
Sec. Sec.  806.14(b)(6) and (d)(6) and 806.23(b)(5).
    Response: The Commission has not extended its review jurisdiction 
over passive AMD treatment facilities and nothing in the proposed rule 
was meant to alter that long standing determination. Accordingly, the 
final rule contains revisions to Sec. Sec.  806.14(b)(6) and (d)(6) and 
806.23(b)(5) to remove the word ``gravity-drained'' and clarify its 
application to ``AMD facilities that qualify as a withdrawal.''

Miscellaneous Changes

    Comment: Including in Sec.  808.2(a) that the 30 day appeal period 
can run from publication on the Commission's Web site creates issues, 
including knowing whether the appeal period runs from publication on 
the Web site or the Federal Register and the fact that it is not always 
clear when something is posted to a Web site or is easily found on the 
Web site.
    Response: The final rule revises Sec.  808.2(a) to remove this 
language. The 30-day appeal period for third party appeals will run 
from the date of publication in the Federal Register.
    Comment: The addition of ``or other fluids associated with the 
development of natural gas resources'' to the definition of 
``production fluids'' under Sec.  806.3 is inaccurate and over-
inclusive. The revised definition of production fluids would cause 
confusion with the member jurisdiction terminology. The commenter is 
supportive of the stated goal of this change and proposed additional 
language to be added in other parts of regulations.
    Response: The final rule removes the change to the definition of 
``production fluid.'' The revision proposed by the commenter will be 
evaluated for inclusion in a future rulemaking.
    Comment: The addition of ``consumptive use'' to the definition of 
``facility'' in Sec.  806.3 is unwarranted as the definition of 
``facility'' matches the definition in the Compact.
    Response: The final rule will remove the amendment to the 
definition of ``facility''. However, the definition of facility 
includes plants, structures, machinery and equipment acquired, 
constructed, operated or maintained for the beneficial use of water 
resources that includes the consumptive use of water.
    The Commission also is making additional housekeeping changes on 
the final rulemaking:
    (1) Sec.  806.6(b)(6) (related to transfers of approvals) was added 
to recognize registered grandfathered aspects of a project under 
subpart E.
    (2) The phrase ``hydro report'' in Sec.  806.14(d)(2)(ii) was 
clarified to ``hydrogeologic report''.
    (3) The word ``Commission's'' is removed from Sec.  806.41(c).

Transition Issues

    As noted in the DATES section, this rule will take effect on July 
1, 2017, 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 take effect on January 
1, 2018.
    Coincident with the authorization to adopt this final rulemaking, 
the Commission also adopted a Regulatory Program Fee Schedule that sets 
forth the fee for registration for grandfathered projects. This fee 
schedule is available on the Commission's Web site at www.srbc.net/policies/policies.htm.

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 amends 18 CFR parts 806 and 808 as 
follows:

PART 806--REVIEW AND APPROVAL OF PROJECTS

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


[[Page 29390]]


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


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


Sec.  806.1806.1  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, Pub. L. 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 www.srbc.net.

0
 3. In Sec.  806.3, add, in alphabetical order, a definition for 
``Wetlands'' to read as follows:


Sec.  806.3806.3  Definitions.

* * * * *
    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, 
(a)(1)(iii), (a)(2) introductory text, and (a)(2)(iv) and adding 
paragraph (a)(3)(vii) to read as follows:


Sec.  806.4806.4  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 (a)(2) 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 of this part 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 of this part.
* * * * *
    (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 (c)(3), provided the fluids are handled, transported and 
stored in compliance with all standards and requirements of the 
applicable member jurisdiction.
* * * * *

0
5. Amend Sec.  806.6 by adding paragraph (b)(6) to read as follows:


Sec.  806.6806.6  Transfer of approvals.

* * * * *
    (b) * * *
    (6) The project is registered under subpart E of this part.
* * * * *

0
6. 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
7. 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 this section may be terminated by 
the Commission in accordance with the procedures set forth in Sec.  
806.16.

0
 8. 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,

[[Page 29391]]

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 their 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) For new projects and major modifications to increase a 
withdrawal, 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) 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, unless a request for a waiver of the requirements of 
Sec.  806.12 is granted. 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. Other projects, including without limitation, 
mine dewatering, construction dewatering, water resources remediation 
projects, and AMD remediation facilities that qualify as a withdrawal.
    (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.
    (ii) [Reserved]
    (c) All applications for renewal of expiring approved projects, 
including those with minor or major modifications, 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 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) 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,

[[Page 29392]]

historic operational data pumping and elevation data may be considered, 
as a request for waiver of the requirements of Sec.  806.12. 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 hydrogeologic 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.
    (v) Changes to the facility design.
    (vi) Any proposed changes to the previously authorized purpose.
    (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.
    (iii) Changes to the facility design.
    (iv) Any proposed changes to the previously authorized purpose.
    (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. Other projects, including without limitation, 
mine dewatering, water resources remediation projects, and AMD 
facilities that qualify as a withdrawal.
    (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) of 
this section.
    (iii) Demonstration of continued need for expiring approved water 
source and quantity.
    (iv) Changes to the facility design.
    (v) Any proposed changes to the previously authorized purpose.
    (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
9. 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 of such property owner 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 or the verified return 
receipt from a comparable delivery service 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 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
10. 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

[[Page 29393]]

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
11. Amend Sec.  806.22 by revising paragraphs (b) introductory text, 
(b)(3), (e), and (f)(3) and (9) to read as follows:


Sec.  806.22   Standards for consumptive use of water.

* * * * *
    (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 shall mitigate such consumptive use. Except to 
the extent that the project involves the diversion of the waters out of 
the basin, public water supplies shall be exempt from the requirements 
of this section regarding consumptive use; provided, however, that 
nothing in this section shall be construed to exempt individual 
consumptive users connected to any such public water supply from the 
requirements of this section. Mitigation may be provided by one or a 
combination of the following:
* * * * *
    (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.
* * * * *
    (e) Approval by rule for consumptive uses. (1) General rule. 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) Time of notice. Within 20 days after submittal of an NOI under 
paragraph (e)(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 paragraph (b)(2) or (3) of this section.
    (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) Decision. 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 previously granted 
hereunder, and will notify the project sponsor of such determination, 
including the quantity of consumptive use approved.
    (9) Term. 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) * * *
    (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.
* * * * *
    (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.
* * * * *

0
12. 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 AMD facilities that qualify as a withdrawal, 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
13. Amend Sec.  806.30 by revising the introductory text and 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

[[Page 29394]]

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
14. 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
15. 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) Project 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, by December 31, 2019.
    (b) Any grandfathered project that fails to register under 
paragraph (a) of this section shall be subject to 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 review and approval under Sec.  
806.4.
    (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 the project sponsor 
registering submitted the water withdrawal and consumptive use data for 
the previous five calendar years to a member jurisdiction, that data 
will satisfy this requirement. A project sponsor registering may 
provide supplementary data related to water withdrawals and consumptive 
use quantities. 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 or waive any information 
required under paragraph (a) of this section for projects relying on a 
prior determination of the Commission.


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.

[[Page 29395]]

    (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 water withdrawal and 
consumptive use quantity reporting is required by the member 
jurisdiction where the project is located, the Commission shall accept 
that reported quantity to satisfy the requirements of this paragraph 
(c), unless the Commission finds that additional data is needed that is 
not required by the member jurisdiction.
    (d) Any data generated or collected under paragraph (c) of this 
section will be made available to the member jurisdictions in a manner 
and timeframe mutually agreeable to both the Commission and the 
jurisdiction.


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 withdrawal and use data and the peak consecutive 30-day 
average shown by the 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;
    (4) Whether the grandfathered amount includes an operational margin 
of safety; and
    (5) Other relevant factors.
    (c) The Executive Director, in lieu of a determination under 
paragraph (b) of this section, may accept a previous grandfathering 
determination by the Commission at the request of the project sponsor.


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
16. 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
17. Revise Sec.  808.1 to read as follows:


Sec.  808.1808.1  Public hearings.

    (a) Required hearings. 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) Optional hearings. 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) 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 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

[[Page 29396]]

the recording stenographer at their expense.
    (i) Joint hearings. The Commission may conduct any public hearings 
in concert with any other agency of a member jurisdiction.

0
18. Revise Sec.  808.2 to read as follows:


Sec.  808.2808.2  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 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;
    (2) An approval or denial of an application for transfer under 
Sec.  806.6;
    (3) An approval of a Notice of Intent under a general permit under 
Sec.  806.17;
    (4) An approval of a minor modification under Sec.  806.18;
    (5) A determination regarding an approval by rule under Sec.  
806.22(e) or (f);
    (6) A determination regarding an emergency certificate under Sec.  
806.34;
    (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;
    (10) A decision to modify, suspend or revoke a previously granted 
approval; and
    (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)(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 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
19. 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
20. 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

[[Page 29397]]

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
21. 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; and
    (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
22. Amend Sec.  808.16 by revising paragraphs (a) introductory text and 
(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
23. 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
24. 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: June 21, 2017.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2017-13324 Filed 6-28-17; 8:45 am]
 BILLING CODE 7040-01-P