[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Rules and Regulations]
[Pages 20628-20631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07998]



[[Page 20628]]

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DELAWARE RIVER BASIN COMMISSION

18 CFR Parts 401 and 440


Comprehensive Plan and Special Regulations With Respect to High 
Volume Hydraulic Fracturing; Rules of Practice and Procedure Regarding 
Project Review Classifications and Fees

AGENCY: Delaware River Basin Commission.

ACTION: Final rule.

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SUMMARY: The Delaware River Basin Commission is amending its 
Comprehensive Plan and adopting new regulations to prohibit high volume 
hydraulic fracturing in hydrocarbon-bearing rock formations within the 
Delaware River Basin. The Commission is simultaneously adopting 
unrelated amendments to its rules concerning the classification of 
projects for review under Section 3.8 of the Compact and regulatory 
program fees.

DATES: This final rule is effective May 21, 2021.

FOR FURTHER INFORMATION CONTACT: Pamela M. Bush, Esquire, 609-477-7203, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Delaware River Basin Commission (``DRBC'' or ``Commission'') is 
a Federal-interstate compact agency charged with managing the water 
resources of the Delaware River Basin on a regional basis without 
regard to political boundaries. Its members are the governors of the 
four basin states--Delaware, New Jersey, New York and Pennsylvania--and 
the North Atlantic Division Commander of the U.S. Army Corps of 
Engineers, representing the Federal Government.
    When the potential for developing natural gas from tight shale 
formations within the Basin using high volume hydraulic fracturing 
(``HVHF'') and horizontal drilling techniques and the risks to water 
resources posed by such activities became known to the Commission, 
Commission staff undertook a scientific, technical, regulatory, and 
policy analysis to determine the appropriate response in light of the 
Commission's statutory mission and Comprehensive Plan.
    An important milestone occurred on September 13, 2017, when the 
DRBC Commissioners by a Resolution for the Minutes directed the 
Executive Director to prepare and publish for public comment a revised 
set of draft regulations, to include, among other things, 
``prohibitions relating to the production of natural gas utilizing 
horizontal drilling and hydraulic fracturing within the basin.'' In 
accordance with the Commissioners' directive, the Commission proposed 
amendments to its Comprehensive Plan and to its Special Regulations at 
18 CFR part 440, including a prohibition on HVHF within the Basin. The 
Commission simultaneously proposed amendments to its Administrative 
Manual--Rules of Practice and Procedure, 18 CFR part 401, concerning 
the classification of projects for review under Section 3.8 of the 
Compact (Sec.  401.35) and regulatory program fees (Sec.  401.43). See 
83 FR 1586, January 12, 2018. Also see, 21 DE Reg. 526, January 1, 
2018; 50 N.J.R. 717, February 5, 2018; NYS Register, January 3, 2018 p. 
5; and 48 Pa. B. 255, January 13, 2018. Some of the proposed amendments 
to part 401 were related to the new part 440 and others were not; 
however, only the changes unrelated to part 440 are being adopted as 
final rules.
    The changes unrelated to HVHF do not substantively alter Commission 
requirements or fees, but better align the rules with the Commission's 
practices, eliminate unnecessary language, clarify language that has 
been misconstrued, and in instances replace the discretion of the 
Executive Director with that of the Commission. The changes to project 
review classifications: (1) Retain Commission review of alterations to 
wetlands of less than 25 acres where a state or a federal level review 
and permit system is not in effect, while eliminating additional 
triggers for such review; (2) remove the provision for review of 
regional wastewater treatment plans developed pursuant to the Federal 
Water Pollution Control Act because the basin states have effective 
programs for the transparent development and implementation of such 
plans; (3) replace the discretion of the Executive Director with that 
of the Commission to require review under Section 3.8 of the Compact of 
any project having a potential substantial water quality impact on 
waters classified as Special Protection Waters; and (4) clarify that 
the Commission as a whole, not merely any single agency of a signatory 
party, may determine that a project in an excluded classification is 
required to be submitted for review under Section 3.8 of the Compact. 
The changes to regulatory program fees replace the term ``docket 
application fee'' with the more accurate term ``application fee,'' 
because project review does not always involve a ``docket.''
    Extensive opportunity for public input on the proposed rules was 
provided during the public comment period that took place from November 
30, 2017 to March 30, 2018. In addition to accepting written comments, 
the Commission accepted oral comment at six public hearings, one of 
which was conducted through an operator-assisted toll-free 
teleconference to avoid the need for travel to a hearing location. 
During the comment period, the Commission received a total of 8,903 
comment submissions (8,680 in writing and 223 at public hearings). In 
many cases, a single comment submission included numerous detailed 
comments. A Comment and Response Document was prepared and adopted by 
the Commission to address the comments received from the public.
    Together with the other materials gathered during the development 
of its regulation, the Commission reviewed the extensive public 
comments, including consultant reports, scientific literature and other 
statements and materials submitted, and examined the experience of 
other jurisdictions with HVHF. Based upon its review, the Commission by 
Resolution No. 2021-01 on February 25, 2021, found and determined that:
    1. As the scientific and technical literature and the reports, 
studies, findings and conclusions of other government agencies reviewed 
by the Commission have documented, and as the more than a decade of 
experience with high volume hydraulic fracturing in regions outside the 
Delaware River Basin have evidenced, despite the dissemination of 
industry best practices and government regulation, high volume 
hydraulic fracturing and related activities have adversely impacted 
surface water and groundwater resources, including sources of drinking 
water, and have harmed aquatic life in some regions where these 
activities have been performed.
    2. The region of the Delaware River Basin underlain by shale 
formations is comprised largely of rural areas dependent upon 
groundwater resources; sensitive headwater areas considered to have 
high water resource values; and areas draining to DRBC Special 
Protection Waters.
    3. The geology of the region in which shale formations potentially 
containing natural gas are located in the Basin is characterized by 
extensive geologic faults and fractures providing preferential pathways 
for migration of fluids (including gases).
    4. If commercially recoverable natural gas is present in the 
Delaware River Basin and if HVHF were to proceed in the Basin, then:

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    a. Spills and releases of hydraulic fracturing chemicals, fluids 
and wastewater would adversely impact surface water and groundwater, 
and losses of well integrity would result in subsurface fluid 
(including gas) migration, impairing drinking water resources, and 
other uses established in the Comprehensive Plan.
    b. The fluids released or migrating would contain pollutants, 
including salts, metals, radioactive materials, organic compounds, 
endocrine-disrupting and toxic chemicals, and chemicals for which 
toxicity has not been determined, impairing the water uses protected by 
the Comprehensive Plan.
    c. HVHF activities and their impacts would be dispersed over and 
adversely affect thousands of acres of sensitive water resource 
features, including, among others, forested groundwater infiltration 
areas, other groundwater recharge locations, and drainage areas to 
Special Protection Waters, where few existing roads are designed to 
safely carry the heavy industrial traffic required to support HVHF, 
prevent dangerous spills or provide access to remediate spills that 
occur.
    5. For these reasons and other grounds described in the 
administrative record for this rulemaking:
    a. High-volume hydraulic fracturing and related activities pose 
significant, immediate and long-term risks to the development, 
conservation, utilization, management, and preservation of the water 
resources of the Delaware River Basin and to Special Protection Waters 
of the Basin, considered by the Commission to have exceptionally high 
scenic, recreational, ecological, and/or water supply values.
    b. Controlling future pollution by prohibiting high volume 
hydraulic fracturing in the Basin is required to effectuate the 
Commission's Comprehensive Plan, avoid injury to the waters of the 
Basin as contemplated by the Comprehensive Plan and protect the public 
health and preserve the waters of the Basin for uses in accordance with 
the Comprehensive Plan.
    The Commission's Comment and Response Document responds to comments 
regarding the risks to water resources posed by HVHF, and the potential 
and observed adverse impacts of HVHF and related activities on water 
resources. In addition, it addresses comments concerning: The 
Commission's authority; the intersection of Commission, state and 
Federal rules; the proposed rule text; basis and background documents; 
economic impacts; the relationship of HVHF and related activities to 
DRBC's Comprehensive Plan, rules and policies; public health; chemical 
disclosures; climate change; renewable energy; policies and reports on 
the Susquehanna River Basin; the public input process; compliance and 
enforcement; constitutional challenges and other matters.

Changes From the Draft Rule

    Upon adopting its final rules concerning HVHF, the Commission 
withdrew proposed Sec.  440.4--Exportation of water for hydraulic 
fracturing of oil and natural gas wells and Sec.  440.5--Produced Water 
(and importation of wastewater), and revised Sec.  440.2--Definitions 
to eliminate terms associated solely with the two deleted sections. 
Within part 401, comprising the Commission's Rules of Practice and 
Procedure, proposed amendments to Sec.  401.35--Classification of 
Projects for Review concerning the importation and exportation of water 
and wastewater into and from the Basin were withdrawn. Also, within 
part 401, proposed amendments to Sec.  401.43--Regulatory Program Fees 
related to wastewater treatability studies were withdrawn. The final 
rules were revised to eliminate all references to the deleted sections, 
and public comments specific to these sections are not addressed in the 
Commission's Comment and Response document. The topics of water 
exportation and wastewater importation will be addressed as appropriate 
through one or more separate Commission actions.
    The Comprehensive Plan amendments and final rules replace the 
Executive Director Determinations of May 19, 2009, June 14, 2010 and 
July 23, 2010. The Resolution for the Minutes of May 5, 2010, which 
postponed the Commission's consideration of well pad projects until the 
adoption of final rules, expires by its own terms.

Additional Materials

    Additional materials can be found on the Commission's website, 
www.drbc.net, at https://www.state.nj.us/drbc/about/regulations/final-rule_hvhf.html. These include links to Resolution No. 2021-01 of 
February 25, 2021 adopting the final rule; the Commission's Comment and 
Response Document; a mark-up comparing the final to the proposed rule 
text for 18 CFR part 440; and mark-ups comparing the amended to the 
existing rule text for 18 CFR 401.35 and 401.43.
    The Commission's notice of proposed rulemaking, proposed rule text, 
written comments received, and transcripts of public hearings can be 
found on the Commission's website at https://www.nj.gov/drbc/meetings/proposed/notice_hydraulic-fracturing.html.
    A summary of Commission actions with respect to hydraulic 
fracturing for oil and gas extraction prior to the Commission's 
September 13, 2017 directive is available at: https://www.nj.gov/drbc/programs/natural/archives.html.

List of Subjects

18 CFR Part 401

    Administrative practice and procedure, Fees, Project review, Water 
pollution control, Water resources.

18 CFR Part 440

    Natural gas, Water pollution control, Water resources.

    For the reasons set forth in the preamble, the Delaware River Basin 
Commission amends 18 CFR chapter III as follows:

PART 401--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 401 continues to read as follows:

    Authority:  Delaware River Basin Compact (75 Stat. 688), unless 
otherwise noted.

Subpart C--Project Review Under Section 3.8 of the Compact

0
2. Amend Sec.  401.35 as follows:
0
a. Revise paragraphs (a) introductory text, (a)(2) and (15), and 
(b)(14) through (17);
0
b. Remove paragraph (b)(18);
0
c. Revise paragraph (c);
0
d. Remove paragraph (d).
    The revisions read as follows:


Sec.  401.35   Classification of projects for review under section 3.8 
of the Compact.

    (a) Except as the Commission may specially direct by notice to the 
project owner or sponsor, a project in any of the following 
classifications will be deemed not to have a substantial effect on the 
water resources of the Basin and is not required to be submitted under 
Section 3.8 of the Compact:
* * * * *
    (2) A withdrawal from ground water when the daily average gross 
withdrawal during any 30 consecutive day period does not exceed 100,000 
gallons;
* * * * *
    (15) Draining, filling, or otherwise altering marshes or wetlands 
when the area affected is less than 25 acres; provided, however, that 
areas less than 25 acres shall be subject to Commission review and 
action where neither a state

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nor a Federal level review and permit system is in effect;
* * * * *
    (b) * * *
    (14) Landfills and solid waste disposal facilities affecting the 
water resources of the Basin;
    (15) State and local standards of flood plain regulation;
    (16) Electric generating or cogenerating facilities designed to 
consumptively use in excess of 100,000 gallons per day of water during 
any 30-day period; and
    (17) Any other project that the Commission may specially direct by 
notice to the project sponsor or land owner as having a potential 
substantial water quality impact on waters classified as Special 
Protection Waters.
    (c) Regardless of whether expressly excluded from review by 
paragraph (a) of this section, any project or class of projects that in 
the view of the Commission could have a substantial effect on the water 
resources of the basin may, upon special notice to the project sponsor 
or landowner, be subject to the requirement for review under section 
3.8 of the Compact.

0
3. Amend Sec.  401.43 as follows:
0
a. Revise paragraphs (b)(1) introductory text, (b)(1)(iii) introductory 
text, (b)(2)(i), (b)(4)(iii), and (c); and
0
b. In paragraph (e), in table 1, revise the table heading and the 
heading for the middle column.
    The revisions read as follows:


Sec.  401.43   Regulatory program fees.

* * * * *
    (b) * * *
    (1) Application fee. Except as set forth in paragraph (b)(1)(iii) 
of this section, the application fee shall apply to:
* * * * *
    (iii) Exemptions. The application fee shall not apply to:
* * * * *
    (2) * * *
    (i) Except as provided in paragraph (b)(2)(ii) of this section, an 
annual monitoring and coordination fee shall apply to each active water 
allocation or wastewater discharge approval issued pursuant to the 
Compact and implementing regulations in this part, regardless of 
whether the approval was issued by the Commission in the form of a 
docket, permit or other instrument, or by a Signatory Party Agency 
under the One Permit Program rule (Sec.  401.42).
* * * * *
    (4) * * *
    (iii) Modification of a DRBC approval. Following Commission action 
on a project, each project revision or modification that the Executive 
Director deems substantial shall require an additional application fee 
calculated in accordance with paragraph (e) of this section and subject 
to an alternative review fee in accordance with paragraph (b)(3) of 
this section.
* * * * *
    (c) Indexed adjustment. On July 1 of every year, beginning July 1, 
2017, all fees established by this section will increase commensurate 
with any increase in the annual April 12-month Consumer Price Index 
(CPI) for Philadelphia, published by the U.S. Bureau of Labor 
Statistics during that year.\1\ In any year in which the April 12-month 
CPI for Philadelphia declines or shows no change, the application fee 
and annual monitoring and coordination fee will remain unchanged. 
Following any indexed adjustment made under this paragraph (c), a 
revised fee schedule will be published in the Federal Register by July 
1 and posted on the Commission's website. Interested parties may also 
obtain the fee schedule by contacting the Commission directly during 
business hours.
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    \1\ Consumer Price Index--U/Series ID: CUURA102SA0/Not 
Seasonally Adjusted/Area: Philadelphia-Wilmington-Atlantic City, PA-
NJ-DE-MD/Item: All items/Base Period: 1982-84=100.
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* * * * *
    (e) * * *

               Table 1 to Sec.   401.43--Application Fees
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              * * *                Application fee          * * *
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                                * * * * *
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* * * * *

0
4. Add part 440 to read as follows:

PART 440--HIGH VOLUME HYDRAULIC FRACTURING

Sec.
440.1 Purpose, authority, and relationship to other requirements.
440.2 Definitions.
440.3 High volume hydraulic fracturing (HVHF).

    Authority:  Delaware River Basin Compact (75 Stat. 688).


Sec.  440.1   Purpose, authority, and relationship to other 
requirements.

    (a) Purpose. The purpose of this part is to protect and conserve 
the water resources of the Delaware River Basin. To effectuate this 
purpose, this section establishes standards, requirements, conditions, 
and restrictions to prevent or reduce depletion and degradation of 
surface and groundwater resources and to promote sound practices of 
water resource management.
    (b) Authority. This part implements Sections 3.1, 3.2(a), 3.2 (b), 
3.6(b), 3.6(h), 4.1, 5.2, 7.1, 13.1 and 14.2(a) of the Delaware River 
Basin Compact.
    (c) Comprehensive Plan. The Commission has determined that the 
provisions of this part are required for the immediate and long range 
development and use of the water resources of the Basin and are 
therefore incorporated into the Commission's Comprehensive Plan.
    (d) Relationship to other Commission requirements. The provisions 
of this part are in addition to all applicable requirements in other 
Commission regulations in this chapter, dockets, and permits.
    (e) Severability. The provisions of this part are severable. If any 
provision of this part or its application to any person or 
circumstances is held invalid, the invalidity will not affect other 
provisions or applications of this part, which can be given effect 
without the invalid provision or application.
    (f) Coordination and avoidance of duplication. In accordance with 
and pursuant to section 1.5 of the Delaware River Basin Compact, to the 
fullest extent it finds feasible and advantageous the Commission may 
enter into an Administrative Agreement (Agreement) with any Basin state 
or the Federal Government to coordinate functions and eliminate 
unnecessary duplication of effort. Such Agreements will be designed to: 
Effectuate intergovernmental cooperation, minimize the efforts and 
duplication of state and Commission staff resources wherever possible, 
ensure compliance with Commission-approved requirements, enhance early 
notification of the general public and other interested parties 
regarding proposed activities in the Basin, indicate where a host 
state's requirements satisfy the Commission's regulatory objectives, 
and clarify the relationship and project review decision making 
processes of the states and the Commission for projects subject to 
review by the states under their state authorities and by the 
Commission under Section 3.8 and Articles 6, 7, 10 and 11 of the 
Compact.


Sec.  440.2   Definitions.

    For purposes of this part, the following terms and phrases have the 
meanings provided. Some definitions differ from those provided in 
regulations of one or more agencies of the Commission's member states 
and the Federal Government.

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    Basin is the area of drainage into the Delaware River and its 
tributaries, including Delaware Bay.
    Commission is the Delaware River Basin Commission (DRBC) created 
and constituted by the Delaware River Basin Compact.
    Fracturing fluid(s) is a mixture of water (whether fresh or 
recycled) and/or other fluids and chemicals or other additives, which 
are injected into the subsurface and which may include chemicals used 
to reduce friction, minimize biofouling of fractures, prevent corrosion 
of metal pipes or remove drilling mud damage within a wellbore area, 
and propping agents such as silica sand, which are deposited in the 
induced fractures.
    High volume hydraulic fracturing (HVHF) is hydraulic fracturing 
using a combined total of 300,000 or more gallons of water during all 
stages in a well completion, whether the well is vertical or 
directional, including horizontal, and whether the water is fresh or 
recycled and regardless of the chemicals or other additives mixed with 
the water.
    Hydraulic fracturing is a technique used to stimulate the 
production of oil and natural gas from a well by injecting fracturing 
fluids down the wellbore under pressure to create and maintain induced 
fractures in the hydrocarbon-bearing rock of the target geologic 
formation.
    Person is any natural person, corporation, partnership, 
association, company, trust, Federal, state, or local governmental 
unit, agency, or authority, or other entity, public or private.
    Water resource(s) is water and related natural resources in, on, 
under, or above the ground, including related uses of land, which are 
subject to beneficial use, ownership, or control within the hydrologic 
boundary of the Delaware River Basin.


Sec.  440.3   High volume hydraulic fracturing (HVHF).

    (a) Determination. The Commission has determined that high volume 
hydraulic fracturing poses significant, immediate and long-term risks 
to the development, conservation, utilization, management, and 
preservation of the water resources of the Delaware River Basin and to 
Special Protection Waters of the Basin, considered by the Commission to 
have exceptionally high scenic, recreational, ecological, and/or water 
supply values. Controlling future pollution by prohibiting such 
activity in the Basin is required to effectuate the Comprehensive Plan, 
avoid injury to the waters of the Basin as contemplated by the 
Comprehensive Plan, and protect the public health and preserve the 
waters of the Basin for uses in accordance with the Comprehensive Plan.
    (b) Prohibition. High volume hydraulic fracturing in hydrocarbon 
bearing rock formations is prohibited within the Delaware River Basin.

    Dated: April 13, 2021.
Pamela M. Bush,
Commission Secretary and Assistant General Counsel.
[FR Doc. 2021-07998 Filed 4-20-21; 8:45 am]
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