[Federal Register Volume 86, Number 222 (Monday, November 22, 2021)]
[Proposed Rules]
[Pages 66250-66255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24152]



[[Page 66250]]

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DELAWARE RIVER BASIN COMMISSION

18 CFR Parts 410 and 440


Importations of Water Into and Exportations of Water From the 
Delaware River Basin; Discharges of Wastewater From High Volume 
Hydraulic Fracturing and Related Activities

AGENCY: Delaware River Basin Commission.

ACTION: Notice of proposed rulemaking; public hearing.

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SUMMARY: The Commission proposes to amend its Comprehensive Plan and 
Water Code concerning importations of water into and exportations of 
water from the Delaware River Basin; to amend its Special Regulations--
High Volume Hydraulic Fracturing to prohibit the discharge of 
wastewater from high volume hydraulic fracturing and related activities 
to waters or land within the Delaware River Basin; and to incorporate 
key elements of the latter proposed amendments into the Commission's 
Water Quality Regulations.

DATES: 
    Written comments: Written comments will be accepted through 5 p.m. 
on February 28, 2022.
    Public hearings: Public hearings will be held remotely via Zoom on 
the following dates at the noted times. Details about accessing the 
hearings are available on the Commission's website, www.drbc.gov.
    1. December 8, 2021, 2:30 p.m. to no later than 4:30 p.m.
    2. December 8, 2021, 6:30 p.m. to no later than 8:30 p.m.
    3. December 15, 2021, 1 p.m. to no later than 3 p.m.
    4. December 15, 2021, 4 p.m. to no later than 6 p.m.

ADDRESSES: 
    To submit written comments: Written comments will be accepted until 
5 p.m. on February 28, 2022, through the Commission's online public 
comment collection system at: http://dockets.drbc.commentinput.com. To 
request an exception from use of the online system based on lack of 
access to the internet, please contact: Commission Secretary, DRBC, 
P.O. Box 7360, West Trenton, NJ 08628.
    To register to speak at public hearings: Although attendance at the 
hearings is not limited and requires no registration, those who wish to 
provide oral comment at a hearing must register in advance to do so. 
Registration will be through EventBrite. Links to EventBrite for each 
of the public hearing dates and times are posted at www.drbc.gov. 
Online registration will remain open until 5 p.m. on the day prior to 
the hearing date or until all available speaking slots have been 
filled, whichever is earlier. Each person who wishes to provide oral 
comment may do so at only one public hearing. Registrations will be 
monitored, and if capacity is not adequate to accommodate all who wish 
to speak, additional opportunities may be added.
    See SUPPLEMENTARY INFORMATION for details regarding the substance 
of written comments.

FOR FURTHER INFORMATION CONTACT: For information regarding the public 
hearings and submission of written comments, contact Kate Schmidt, 
Communications Specialist, at [email protected] (preferred) or 609-
883-9500, ext. 205. For information concerning the proposed amendments, 
contact Pamela Bush, Commission Secretary and Assistant General 
Counsel, at [email protected] (preferred) or 609-477-7203.

SUPPLEMENTARY INFORMATION: The Delaware River Basin Commission 
(``DRBC'' or ``Commission'') is a regional interstate and Federal 
agency formed by compact legislation of four states and the United 
States in 1961 \1\ to manage the water resources of the Delaware River 
Basin (the ``Basin'') without regard to political boundaries. Its 
members are, ex officio, the governors of the Basin states (Delaware, 
New Jersey, New York, and Pennsylvania) and the commander of the U.S. 
Army Corps of Engineers North Atlantic Division, who represents the 
United States.
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    \1\ United States Public Law 87-328, Approved Sept. 27, 1961, 75 
Statutes at Large 688; 53 Delaware Laws, Ch. 71, Approved May 26, 
1961; New Jersey Laws of 1961, Ch. 13, Approved May 1, 1961; New 
York Laws of 1961, Ch. 148, Approved March 17, 1961; Pennsylvania 
Acts of 1961, Act. No. 268, Approved July 7, 1961.
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Background

    By Resolution No. 91-9 on June 19, 1991, the Commissioners amended 
the Commission's Comprehensive Plan by the addition of policies and 
regulations relating to transfers of water into and out of the Basin. 
These provisions were later codified in the Delaware River Basin Water 
Code.\2\ The Commission on November 30, 2017, proposed regulations 
that, in part, concerned inter-Basin transfers of water and wastewater 
associated with high volume hydraulic fracturing (``HVHF'') (``2017 
draft rule'') and that addressed the treatment and discharge of 
wastewater generated by HVHF.\3\ Concurrently with adoption of its 
final rule by Resolution No. 2021-01 on February 25, 2021, the 
concerned the exportation of water to support HVHF and the importation, 
treatment, and discharge of ``produced water'' and ``CWT wastewater'' 
as defined therein.\4\ By a Resolution for the Minutes on February 25, 
2021, the Commissioners directed the Executive Director to prepare and 
publish for public comment a set of amendments to the Comprehensive 
Plan and implementing regulations to update the Commission's policies 
and provisions concerning importation and exportation of water and 
wastewater from and into the Basin and ``to include such other proposed 
amendments . . . as [the Executive Director, in consultation with the 
Commissioners] deem necessary or appropriate.''
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    \2\ Delaware River Basin Water Code (hereinafter ``Water Code'') 
(incorporated by reference at 18 CFR part 410), section 2.30.
    \3\ 83 FR 1586, Jan. 12, 2018.
    \4\ 83 FR 1586, pp. 1589, 1591 (defining ``produced water'' as 
``any water or fluid returned to the surface through the production 
well as a waste product of hydraulic fracturing,'' and defining 
``CWT wastewater'' as ``wastewater or effluent resulting from the 
treatment of produced water by a centralized waste treatment 
facility (`CWT')'').
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    In accordance with the Commissioners' February 25, 2021, directive, 
the Commission is proposing amendments to its Comprehensive Plan and 
regulations to better provide for the planning, conservation, 
utilization, development, management and control of the Basin's water 
resources in connection with: The importation of water, including 
wastewater, into the Basin; the exportation of water, including 
wastewater, from the Basin; and the discharge of wastewater from HVHF 
and HVHF-related activities. The Commission proposes to amend the Water 
Code by clarifying the circumstances in which exportations of water, 
including wastewater, from the Basin and importations of water, 
including wastewater, into the Basin are considered by the Commission 
and the factors to be used in evaluating whether such proposed imports 
and exports of water may be approved. The proposed amendments will not 
apply to importations and exportations that existed prior to the 
effective date of any final rules, but are proposed to apply to 
increases in the rate or volume of existing importations and 
exportations. The Commission also proposes to amend its Special 
Regulations regarding HVHF by the addition of a finding that the 
discharge of wastewater from HVHF and HVHF-related activities poses 
significant, immediate, and long-term risks to the development, 
conservation, utilization, management, and

[[Page 66251]]

preservation of the Basin's water resources, and that controlling 
future pollution by prohibiting such discharge 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. The finding is accompanied by a provision 
prohibiting the discharge to waters of the Basin of wastewater from 
HVHF and HVHF-related activities.
    Managing water quantity and quality through a basinwide 
Comprehensive Plan. The Delaware River Basin Compact directs the 
Commission to develop and adopt, and from time to time review and 
revise, a Comprehensive Plan ``for the immediate and long range 
development and use of the water resources of the [B]asin'' to which 
Federal, State and local agencies and private parties are bound.\5\ 
Through the adoption of a series of polices and regulations 
establishing and amending its Comprehensive Plan, the Commission over 
the past half-century has developed and implemented in-stream water 
quality standards throughout the Basin, prohibited degradation of 
groundwater, instituted reservoir drought operating plans, established 
protected areas to prevent the depletion of groundwater, and provided 
special protection to the non-tidal portion of the Delaware River to 
preserve its exceptionally high scenic, recreational, ecological and 
water supply values. As the agency through which the five signatory 
parties to the Compact--the States of Delaware, New Jersey and New 
York, the Commonwealth of Pennsylvania, and the United States--
collectively manage the Basin's water resources on a regional basis, 
the Commission has taken these steps to, among other things, ensure an 
adequate supply of suitable quality water for domestic use, recreation, 
power generation, industrial activity and aquatic life, and to 
accommodate large out-of-Basin diversions by the City of New York and 
the State of New Jersey that are authorized by the 1954 decree of the 
U.S. Supreme Court in New Jersey v. New York, 347 U.S. 995 (the 
``Decree'').
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    \5\ Compact, supra note 1, sections 3.2 and 13.1.
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    Water Exportation. Since June 19, 1991, the Commission's policy as 
articulated in the Comprehensive Plan and Water Code (incorporated by 
reference at 18 CFR part 410) has been to discourage the exportation of 
water from the Basin on grounds that the Basin's waters ``are limited 
in quantity and the Basin is frequently subject to drought warnings and 
drought declarations due to limited water supply storage and streamflow 
during dry periods.'' \6\
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    \6\ See Water Code section 2.30.2.
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    In allocating the waters of the Basin under Section 3.3 of the 
Compact, the Commission is constrained by limited reservoir storage, 
particularly during periods of low flow.\7\ Droughts of varying 
intensity and length have impacted the Basin since the Commission was 
formed in October 1961.\8\ The Commission has implemented drought 
operations thirteen times over six decades, including during seven 
droughts so severe the Commission declared them to be drought 
emergencies.\9\
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    \7\ See e.g., Water Code section 2.30.2; U.S. Department of the 
Interior U.S. Geological Survey Office of the Delaware River Master, 
History of the Reservoir Releases Program in the Upper Delaware 
River Basin, available at: https://webapps.usgs.gov/odrm/about/history.
    \8\ Delaware River Basin Commission, An Overview of Drought in 
the Delaware River Basin (Feb. 2019), Sec. ``DRBC's Basinwide 
Drought Actions,'' par. 1, available at: https://www.state.nj.us/drbc/library/documents/drought/DRBdrought-overview_feb2019.pdf.
    \9\ Id., at Table 1: Basinwide Drought Actions (two of the 
emergency actions were conditional and did not go into effect).
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    The Commission's current Comprehensive Plan includes three major 
types of exportations of water from the Basin, many of which have also 
been the subject of DRBC project approvals:
    [ssquf] Pre-Compact out-of-Basin diversions by New York City and 
the State of New Jersey authorized by the Decree; and with the 
unanimous consent of the parties to the Decree in accordance with 
Section 3.3 of the Compact, modifications of such diversions;
    [ssquf] Out-of-Basin transfers approved on a long-term basis 
pursuant to Section 3.8 and Article 11 of the Compact to meet the needs 
of public water systems with service areas straddling or adjacent to a 
Basin boundary; and
    [ssquf] Out-of-Basin transfers approved on a temporary or emergency 
basis pursuant to Section 3.8 of the Compact to ensure the public 
health and safety of communities adjacent to or straddling a Basin 
boundary.
    The draft amendments establish the circumstances under which 
proposed exportations that meet the existing threshold for review 
established by the Commission's Rules of Practice and Procedure may be 
considered for approval. Under the proposed rule, the Commission may 
approve an exportation of water from the Basin if the export is needed 
to serve a straddled or adjacent public water system; if it is required 
on a temporary, short-term, or emergency basis to meet public health 
and safety needs; or if it comprises an exportation of wastewater. The 
proposed amendments provide that in reviewing proposed exportations, an 
analysis of alternatives to the proposed exportation will be 
considered, along with factors that include the effects of the proposal 
on public health and safety and effectuation of the Comprehensive Plan. 
The amended rules will further the Commission's objectives of 
conserving, utilizing, managing, and controlling the Basin's water 
resources by ensuring that the uses included within the Comprehensive 
Plan are protected, and will preserve the diversions, compensating 
releases, rights, conditions, and obligations of the parties to the 
U.S. Supreme Court Decree of 1954 in New Jersey v. New York, 347 U.S. 
995 (1954).
    Water Importation. At the time the Commission was created in 1961, 
the tidal Delaware River suffered from water quality impairments that 
included severe hypoxia (lack of dissolved oxygen) annually from May 
through November, preventing the passage of fish species that migrate 
between marine and fresh waters to reproduce. A key step in the 
Estuary's restoration was the establishment of water quality uses and 
criteria by the Commission in 1967. Because even after treatment, 
wastewater typically contains oxygen-depleting substances, the 
Commission has for decades used wasteload allocations for carbonaceous 
oxygen demand to protect the uses it established, including by 
maintaining dissolved oxygen in the Estuary at levels sufficient to 
support aquatic life.\10\
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    \10\ See Delaware River Basin Water Code, sections 3.30.2 D.2, 
3.30.3 D.2, 3.30.4 D.2, 3.30.5 D.2, 3.30.6 D.2.
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    The presence of persistent bioaccumulative toxic contaminants in 
sediment, the water column and fish tissue is a legacy of the Delaware 
River Estuary's nearly two centuries of industrial use. Although water 
quality improvements over the past fifty years have substantially 
increased the variety and abundance of Estuary fish, multiple species 
are contaminated with polychlorinated biphenyls (``PCBs''), dioxins and 
furans, mercury, and dieldrin at levels exceeding human health risk 
advisory limits for their consumption.\11\ By Resolution No.

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2000-4 the Commission in 2000 determined that allocations of the waste 
assimilative capacity of the Estuary were necessary in Water Quality 
Zones 2 through 5 to maintain stream quality objectives for acute 
toxicity and chronic toxicity. The Commission and its members face new 
challenges in the emergence of previously unknown contaminants now 
understood to have adverse impacts on human health and aquatic life.
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    \11\ See Delaware Department of Natural Resources and 
Environmental Control, Delaware Fish Consumption Advisories (Jan. 
2018), available at: https://documents.dnrec.delaware.gov/fw/Fisheries/Documents/2018-Delaware-Fish-Consumption-Advisory-Table.pdf; New Jersey Department of Environmental Protection & New 
Jersey Department of Health, Fish Smart, Eat Smart: A guide to 
Health Advisories for Eating Fish and Crabs Caught in New Jersey 
Waters (Nov. 2020), available at: https://www.nj.gov/dep/dsr/fish-advisories.pdf; Pennsylvania Department of Environmental Protection, 
Commonwealth of Pennsylvania Public Health Advisory 2021 Fish 
Consumption (Feb. 2021), available at: https://pfbc.pa.gov/fishpub/summaryad/sumconsumptionotepdf.
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    Although water quality management objectives in the Delaware River 
Estuary have of necessity prioritized restoration, the focus in the 
non-tidal Delaware River has been to prevent degradation of waters that 
are exceptionally clean. By resolutions in 1992, 2005, and 2008, the 
Commission designated the entire 197-mile reach of the non-tidal main 
stem Delaware River from Hancock, New York, to Trenton, New Jersey, as 
``Special Protection Waters,'' due to their exceptionally high scenic, 
recreational, ecological, and water supply values. The importance of 
these waters to the public is underscored by their national 
designation: The non-tidal main stem within and downstream of potential 
HVHF activity includes 147 river miles designated by Congress as parts 
of the National Wild and Scenic Rivers System, including 113 river 
miles that have also been designated as units of the National Park 
System.\12\ New or expanded pollutant loadings to Special Protection 
Waters--whether from imported wastewater or wastewater generated within 
the Basin--are permitted only if they do not measurably change the 
defined, existing water quality.
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    \12\ See 16 U.S.C. 1274(a)(19)-(20) (Upper Delaware Scenic and 
Recreational River and Delaware Water Gap National Recreation Area), 
16 U.S.C. 1274(a)(165) (Lower Delaware River and Associated 
Tributaries). Other Basin waters included in the Wild and Scenic 
Rivers System and protected by state antidegradation programs 
include: 190 miles of the White Clay Creek and its tributaries in 
Delaware and Pennsylvania, 35 miles of the Maurice River and its 
tributaries in New Jersey, and 25 miles of the Musconetcong River, 
also in New Jersey. See, 16 U.S.C. 1274(a)(163) (White Clay Creek 
and its tributaries); 16 U.S.C. 1274(a)(146)-(149) & 1274(a)(151)-
(153) (Maurice River and its tributaries); 16 U.S.C. 1274(a)(169) 
(Musconetcong River).
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    For the foregoing reasons, since June 19, 1991, the Commission's 
policy as set forth in the Water Code and Comprehensive Plan is to 
discourage the importation of wastewater into the Basin on grounds that 
the Basin's waters ``have limited assimilative capacity and limited 
capacity to accept conservative substances without significant 
impacts.'' \13\ The Commission will continue to use its authority to 
preclude the discharge of wastewater that would impede the restoration 
of water quality and aquatic life in the tidal Delaware River or that 
would degrade the Basin's Special Protection Waters.
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    \13\ See Water Code section 2.30.2 (or ``limited capacity to 
assimilate pollutants'' as reflected in the proposed amendments).
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    The proposed rules regarding importation clarify the factors the 
Commission will use in evaluating proposed importations that meet the 
existing thresholds for review established by the Commission's Rules of 
Practice and Procedure. Although importations of wastewater are 
``discouraged,'' they may be permitted after careful consideration to 
ensure that available alternatives have been evaluated, treatment is 
employed to ensure applicable water quality criteria are achieved, 
restoration efforts are not impeded, and uses incorporated in the 
Commission's Comprehensive Plan are protected. The amended rules will 
further the Commission's objectives of conserving, utilizing, managing, 
and controlling the Basin's water resources by ensuring continued 
protection of the uses included within the Comprehensive Plan.
    Notably, to date, the Commission has not approved transfers into 
the Basin of wastewater associated with HVHF, and no applications for 
such transfers are under consideration. Additionally, in many 
instances, the Commission has conditioned its approvals of wastewater 
discharge projects on a requirement that no importation, treatment or 
discharge of HVHF wastewater may be undertaken by a docket holder 
without the Commission's prior review and approval. As discussed below, 
amendments to the Commission's Special Regulations at 18 CFR part 440--
High Volume Hydraulic Fracturing are being proposed that would prohibit 
the discharge of HVHF wastewater to water or land within the Basin.
    Prohibition on Discharge of Wastewater from HVHF and HVHF-Related 
Activities. The Commission's Comprehensive Plan and Water Code provide 
in part that ``[t]he quality of Basin [surface] waters, except 
intermittent streams, shall be maintained in a safe and satisfactory 
condition'' for uses that include, ``agricultural, industrial, and 
public water supplies after reasonable treatment, except where natural 
salinity precludes such uses; . . . wildlife, fish and other aquatic 
life; recreation; navigation; [and] controlled and regulated waste 
assimilation to the extent that such use is compatible with other 
uses.'' \14\ Similarly, the Comprehensive Plan and Water Code provide 
that the quality of ground waters of the Basin ``shall be maintained in 
a safe and satisfactory condition, except where such uses are precluded 
by natural quality, for . . . domestic, agricultural, industrial, and 
public water supplies; [and] . . . a source of surface water suitable 
for recreation, wildlife, fish and other aquatic life.'' \15\
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    \14\ Water Code, section 3.10.2. B.
    \15\ Id., section 3.40.3.
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    In its proposed and final rules prohibiting HVHF within the Basin 
in November 2017 and February 2021, respectively,\16\ the Commission 
recognized that the treatment disposal of HVHF wastewater, among other 
activities associated with HVHF, posed risks, vulnerabilities and 
impacts to the Basin's water resources.\17\ The peer-reviewed science 
discussed in detail in the Comment and Response Document adopted 
concurrently with the Commission's final rule (hereinafter, the 
``CRD'') \18\ demonstrates that for a variety of reasons, protecting 
public health and preserving the Basin's water resources for uses in 
accordance with the Comprehensive Plan require that discharges of HVHF 
wastewater to Basin waters or land be prohibited.
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    \16\ 83 FR 1586, Jan. 12, 2018; 86 FR 20628, Apr. 21, 2021.
    \17\ See, e.g., DRBC Resolution No. 2021-01, p. 4, par. 4. 
Available at: https://www.state.nj.us/drbc/library/documents/Res2021-01_HVHF.pdf. See generally, Delaware River Basin Commission, 
Comment and Response Document: Proposed Amendments to the 
Administrative Manual and Special Regulations Regarding High Volume 
Hydraulic Fracturing Activities; Additional Clarifying Amendments, 
Feb. 25, 2021 (hereinafter, ``CRD''), at, e.g., pp. E-1, 65-66 
(``Synthesis'' of response to comments concerning spills); pp. 158-
59 (water quality impacts from discharges of treated hydraulic 
fracturing wastewater). The CRD is available at: https://www.state.nj.us/drbc/library/documents/CRD_HVHFrulemaking.pdf.
    \18\ See CRD, supra note 15.
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    Hydraulic fracturing wastewater may contain a complex blend of 
constituents, including known carcinogens, neurotoxins, or endocrine 
disruptors, or are characterized by reproductive or developmental 
toxicity or adverse immune system effects.\19\ As discussed

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at length in the CRD, some of the chemicals used are not known because 
they are accorded protection as trade secrets.\20\ The U.S. 
Environmental Protection Agency (hereinafter, ``EPA''), has reported 
that the majority of chemicals associated with hydraulic fracturing, 
both known and unknown, have not undergone significant toxicological 
assessment.\21\ The impacts from those chemicals to human health and 
aquatic life are thus undetermined.\22\ In addition to the potential 
pollutants in fracturing fluid, the fluid returned from an oil or 
natural gas well after HVHF (typically called ``produced water'' and 
including ``flowback water'') is mixed with water from the target 
formation, which contains: Salts, including chloride, bromide, sulfate 
sodium, magnesium, and calcium; metals, including barium, manganese, 
iron, and strontium; naturally-occurring organic compounds, including 
benzene, toluene, ethylbenzene, and xylenes; oil and grease; and 
radioactive materials, including radium, found in ancient sea water 
trapped within the oil- and gas-bearing shale formations.\23\
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    \19\ CRD, supra note 15, pp. 131, 161, and 255 (citing E.G. 
Elliott, et al., A systematic evaluation of chemicals in hydraulic-
fracturing fluids and wastewater for reproductive and developmental 
toxicity, J. Exposure Science & Environmental Epidemiology, 27: 90-
99 (2017)). See also, United States Environmental Protection Agency 
(``U.S. EPA''), Hydraulic fracturing for oil and gas: Impacts from 
the hydraulic fracturing water cycle on drinking water resources in 
the United States (final report) (EPA/600/R-16/236F) (2016) 
(hereinafter ``U.S. EPA 2016 Assessment''), p. ES-20; U.S. EPA, 
Technical development document for the effluent limitations 
guidelines and standards for the oil and gas extraction point source 
category (EPA-820-R-16-003), 2016, pp. 43-47 (Sec. 1.2).
    \20\ See CRD, supra note 15, pp. 259-264.
    \21\ Id., p. 132 (citing U.S. EPA 2016 Assessment, supra note 
17, p. ES-42-45, 9-1).
    \22\ U.S. EPA, Detailed study of the centralized waste treatment 
point source category for facilities managing oil and gas extraction 
wastes. (EPA-821-R-18-004) (2018), p. 9-36. Available at: https://www.epa.gov/sites/default/files/2018-05/documents/cwt-study_may-2018.pdf.
    \23\ CRD, supra note 15, pp. E-6, 71.
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    A report by the U.S. Geological Survey (``USGS'') observed that the 
salts in shale waters (which are sometimes referred to as ``total 
dissolved solids'' or ``TDS'') reached extreme concentrations over 
millions of years, and their chemical interactions with surrounding 
rock can mobilize radionuclides.\24\ The USGS authors cite 
radioactivity as a key characteristic of the HVHF waste stream that 
potentially represents a substantial risk to water resources, aquatic 
ecosystems and biota, and public health, if released.\25\
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    \24\ CRD, supra note 15, p. 84 (citing E.L. Rowan, et al., 
Radium content of oil- and gas-field produced waters in the Northern 
Appalachian Basin (USA): Summary and discussion of data, U.S. 
Department of the Interior, U.S. Geological Survey: Scientific 
Investigations Report 2011-5135 (2011)).
    \25\ CRD, supra note 15, p. 86 (citing E.L. Rowan, et al., supra 
note 22) (also noting that chemically, radium behaves in a manner 
similar to calcium and is capable of bioaccumulation in plants and 
animals).
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    Wastes associated with oil and natural gas exploration, development 
and production, including oil and gas drilling fluids and produced 
waters, are exempt from federal regulations for the management of 
hazardous wastes.\26\ But these wastes may cause harm to public health 
and the environment if they are not properly managed. The CRD 
references multiple studies documenting adverse impacts to water 
resources from HVHF wastewater after treatment, whether by municipal or 
industrial treatment facilities.\27\ Because produced water contains 
high TDS and dissolved inorganic constituents that most publicly owned 
treatment works and other municipal wastewater treatment facilities are 
not designed to remove, EPA in 2016 issued a final rule banning the 
treatment and discharge of oil and gas extraction wastewater from 
publicly owned treatment works (``POTWs'').\28\ Privately owned 
treatment works that treat primarily domestic and commercial wastewater 
remain outside the scope of EPA's ``zero discharge'' rule.
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    \26\ See, e.g., U.S. Environmental Protection Agency, Office of 
Solid Waste, Exemption of Oil and Gas Exploration and Production 
Wastes from Federal Hazardous Waste Regulations, EPA530-K-01-004 
(2002).
    \27\ See CRD, supra note 15, pp. 18-19, 128-143. See also U.S. 
EPA, infra note 26 (regarding impacts associated with discharges 
from municipal wastewater treatment plants); U.S. EPA, supra note 20 
(regarding impacts associated with discharges from the industrial 
wastewater treatment facilities known as ``CWTs'').
    \28\ U.S. EPA, Effluent Limitations Guidelines and Standards for 
the Oil and Gas Extraction Point Source Category, 81 FR 41845 (Aug. 
29, 2016) (preamble). See also 81 FR 88126 (Dec. 7, 2016) (extending 
deadline for compliance); CRD, supra note 15, pp. 18-19, 128.
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    The Commonwealth of Pennsylvania manages the risks associated with 
disposal of HVHF wastewater in part through a detailed statute and 
regulations focused on protecting water resources and public health 
while preserving commercial interests. Regulations adopted in 2010 
pursuant to the Pennsylvania Clean Streams Law address risks associated 
with HVHF wastewater treatment and discharge by limiting new discharges 
of TDS, chlorides, barium and strontium in treated wastewater, 
regardless of the type of discharge--public, private, municipal or 
industrial.\29\
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    \29\ 25 Pa. Code section 95.10. See also CRD, supra note 15, pp. 
132, 178.
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    Research has demonstrated that even with specialized treatment, 
however, the discharge of HVHF wastewater to surface waters can 
adversely impact downstream waters. The Commission's CRD contains an 
extensive discussion of the potential risks associated with the 
treatment and discharge of HVHF wastewater to Basin waters from 
CWTs.\30\ The Commission concluded that treatment of HVHF wastewater at 
CWTs with subsequent discharge of effluent to the waters of the Basin 
would present significant risks to the receiving waters.\31\
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    \30\ See CRD, supra note 15, pp. 130-143, 178. See generally 
U.S. EPA, supra note 20.
    \31\ See CRD, supra note 15, p. 138.
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    Growth in Marcellus shale gas production is anticipated,\32\ and in 
the Marcellus production area immediately west of the Basin, recent 
data show increasing water use by the shale gas production industry, 
which may result in increasing volumes of wastewater.\33\ Although 
additional factors may affect demand for HVHF wastewater treatment and 
discharge options, these shale gas production and water use trends 
create the potential for increased demand for CWT services in the 
region.\34\ To protect the public health and preserve the waters of the 
Basin for uses in accordance with the Comprehensive Plan, the 
Commission thus proposes to prohibit the discharge of treated or 
untreated HVHF wastewater to waters or land within the Basin.
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    \32\ U.S. EPA, supra note 20, p. 8-6.
    \33\ See CRD, supra note 15, p. 16 (reporting increased length 
of natural gas well laterals and increased use of water per foot of 
well fractured in the Susquehanna River Basin, which adjoins the 
Basin) (citing Susquehanna River Basin Commission, Water use 
associated with natural gas development in the Susquehanna River 
Basin: An update of activities through December 2018 (Publication 
No. 323) (2020)).
    \34\ See U.S. EPA, supra note 20, pp. 8-4--8-6.
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    Water Quality Regulations. To facilitate the alignment of certain 
Basin state discharge permits with the Commission's proposed 
regulations regarding wastewater from high volume hydraulic fracturing, 
the Commission further proposes to amend its Water Quality Regulations, 
Article 4--Application of Standards. The proposed amendment would 
consist of a new section 4.50, captioned ``Wastewater from High Volume 
Hydraulic Fracturing and Related Activities,'' expressly incorporating 
into the Water Quality Regulations the determination and prohibition 
comprising Sec.  440.4 of title 18 of the CFR, and the purpose and 
definitions encompassing Sec. Sec.  440.1 and 440.2. Existing section 
4.50 of the Water Quality Regulations and its sub-paragraphs 4.50.1 
through 4.50.6 are

[[Page 66254]]

proposed to be redesignated as section 4.60 and 4.60.1 through 4.60.6.
    Incorporation by Reference. The entirety of the Water Code, 
including section 2.30, and the entirety of the Water Quality 
Regulations, including Article 4, are incorporated by reference into 
the Code of Federal Regulations at 18 CFR 410.1, and each was last 
approved for incorporation by reference by the Office of the Federal 
Register (``OFR'') on December 4, 2013. In accordance with OFR's 
regulations concerning incorporation by reference,\35\ the sections of 
this preamble titled ``Water Importation,'' ``Water Exportation,'' and 
``Water Quality Regulations,'' summarize the proposed amendments to 
section 2.30 of the Water Code and Article 4 of the Water Quality 
Regulations.
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    \35\ See 1 CFR part 51. See also, id., Sec.  51.5B.
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    The Commission further proposes: (a) To amend Sec.  410.1(c) of 
title 18 of the Code of Federal Regulations by replacing the date of 
incorporation by reference there with respect to each of the Water Code 
and Water Quality Regulations (both, December 4, 2013), with the date 
on which the Commission adopts a final rule pursuant to this proposal; 
and (b) to update the Commission's mailing and website addresses.
    Interested persons may obtain or inspect copies of the Water Code 
and the Water Quality Regulations at the Delaware River Basin 
Commission, 25 Cosey Road, West Trenton, New Jersey 08628-0360, 609-
883-9500, or on the Commission's website, www.drbc.gov.
Public Process
    Substance of comments: The Commission expressly seeks comment on 
the effects the proposed rules may have within the Basin on: Water 
availability, the control and abatement of water pollution, economic 
development, the conservation and protection of drinking water 
supplies, the conservation and protection of aquatic life, the 
conservation and protection of water quality in Special Protection 
Waters, and the protection, maintenance and improvement of water 
quantity and quality Basinwide. The Commission welcomes and will 
consider any other comments that concern the potential effects of the 
draft rules on the conservation, utilization, development, management 
and control of the water and related resources of the Basin. Comments 
on matters not within the scope of the proposed rules may not be 
considered.
    Non-digitized, voluminous materials such as books, journals or 
collected letters and petitions will not be accepted. Digital 
submissions of articles and websites must be accompanied by a statement 
containing citations to the specific findings or conclusions the 
commenter wishes to reference.
    Submission of written comments. Written comments along with any 
attachments should be submitted through the Commission's web-based 
comment system (http://dockets.drbc.commentinput.com) until 5 p.m. on 
February 28, 2022. All materials should be provided in searchable 
formats, preferably in .pdf searchable text. Notably, a picture scan of 
a document may not result in searchable text. Comments received through 
any method other than the designated on-line method, including via 
email, fax, postal/delivery services or hand delivery, will not be 
considered or included in the rulemaking record unless an express 
exception has been granted. Requests for exceptions from the web-based-
submissions-only policy based on lack of access to the web-based 
comment system may be addressed to: Commission Secretary, DRBC, P.O. 
Box 7360, West Trenton, NJ 08628.
    Public hearings. To provide for an orderly process and to support 
public and community health measures, the Commission is conducting its 
public hearings virtually. Attendance at the hearings is not limited 
and requires no registration. However, to eliminate uncertainty on the 
part of attendees about whether they will have an opportunity to 
provide oral comment, those who wish to speak at a hearing must 
register in advance to do so, using links on the Commission's website. 
Registrations will be monitored, and if capacity is not adequate to 
accommodate all who wish to speak, additional opportunities may be 
added. Key elements of the procedure are as follows:
    [ssquf] Online registration to speak at a public hearing will 
remain open until 5 p.m. the day prior to each hearing.
    [ssquf] Each person who wishes to provide oral comment may do so at 
only one public hearing.
    [ssquf] Speaking time will be limited to approximately three 
minutes per speaker.
    [ssquf] Elected government officials and their staff will have the 
opportunity to identify themselves when registering to attend a 
hearing.
    [ssquf] Attendance at the public hearings is not limited and 
requires no advance registration.
    [ssquf] Written and oral comment will receive equal consideration.
    The Commission appreciates the public's participation and input on 
this important matter.
    More Information. Detailed and up-to-date information about the 
public process, including all proposed rule text, related documents and 
links for online registration to speak at each of the scheduled public 
hearings, can be found on the DRBC website, www.drbc.gov.

List of Subjects

18 CFR Part 410

    Incorporation by reference, Water pollution control, Water 
resources, Water supply.

18 CFR Part 440

    Wastewater discharge, Water pollution control, Water resources.

    For the reasons set forth in the preamble, the Delaware River Basin 
Commission proposes to amend title 18, chapter III of the Code of 
Federal Regulations as follows:

PART 410--BASIN REGULATIONS; WATER CODE AND ADMINISTRATIVE MANUAL--
PART III WATER QUALITY REGULATIONS

0
1. The authority citation for part 410 continues to read as follows:

    Authority: Delaware River Basin Compact, 75 Stat. 688.

0
2. Amend Sec.  410.1 by revising paragraph (c) to read as follows.


Sec.  410.1  Basin regulations--Water Code and Administrative Manual--
Part III Water Quality Regulations.

* * * * *
    (c) Work, services, activities, and facilities affecting the 
conservation, utilization, control, development, or management of water 
resources within the Delaware River Basin are subject to regulations 
contained within the Delaware River Basin Water Code with Amendments 
through [EFFECTIVE DATE OF FINAL RULE], and the Administrative Manual--
Part III Water Quality Regulations with Amendments through [EFFECTIVE 
DATE OF FINAL RULE]. Both the Delaware River Basin Water Code and the 
Administrative Manual--Part III Water Quality Regulations are 
incorporated by reference into this part with the approval of the 
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 
51. You may obtain or inspect copies at the Delaware River Basin 
Commission (DRBC), 25 Cosey Road, West Trenton, New Jersey 08628-0360, 
609-883-9500, www.drbc.gov, or at the National Archives and Records

[[Page 66255]]

Administration (NARA). For information on the availability of this 
material at NARA, email [email protected] or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html.

PART 440--HIGH VOLUME HYDRAULIC FRACTURING

0
3. The authority citation for part 440 continues to read as follows:

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

0
4. Amend Sec.  440.1 by revising paragraph (d) to read as follows:


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

* * * * *
    (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, permits, and 
determinations.
* * * * *
0
5. Amend Sec.  440.2 by revising the introductory text, adding in 
alphabetical order definitions for ``HVHF-related activities'' and 
``Wastewater from high volume hydraulic fracturing'', and revising the 
definition of ``Water resource(s)'' to read as follows:


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. Others are consistent with terms defined by 
the Delaware River Basin Compact.
* * * * *
    HVHF-related activities are:
    (1) Construction of an oil or natural gas production well that is 
to be stimulated using HVHF as defined in this section;
    (2) Chemical mixing or storage of proppant, chemicals and other 
additives to make fracturing fluid; and
    (3) Management of wastewater from hydraulic fracturing, including 
storage, disposal, treatment, or reuse in hydraulic fracturing 
operations or other uses.
* * * * *
    Wastewater from high volume hydraulic fracturing is:
    (1) Any wastewater, brine, sludge, chemicals, naturally occurring 
radioactive materials, heavy metals, or other contaminants that have 
been used for or generated by high volume hydraulic fracturing or HVHF-
related activities;
    (2) Leachate from solid wastes associated with HVHF-related 
activities, except if the solid wastes were lawfully disposed of in a 
landfill within the Basin prior to [EFFECTIVE DATE OF FINAL RULE]; and
    (3) Any products, co-products, byproducts, or waste products 
resulting from the treatment, processing, or modification of the 
wastewater described in paragraphs (1) and (2) of this definition.
    (4) Leachate from solid wastes associated with HVHF-related 
activities is excluded from this definition if the solid wastes were 
lawfully disposed of in a landfill within the Basin prior to [EFFECTIVE 
DATE OF FINAL RULE].
    Water resource(s) is, in accordance with section 1.2(i) of the 
Delaware River Basin Compact, 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 Delaware 
River Basin.
0
6. Add Sec.  440.4 to read as follows:


Sec.  440.4  Wastewater from high volume hydraulic fracturing and 
related activities.

    (a) Determination. The Commission has determined that the discharge 
of wastewater from high volume hydraulic fracturing and HVHF-related 
activities poses significant, immediate, and long-term risks to the 
development, conservation, utilization, management, and preservation of 
the Basin's water resources. Controlling future pollution by 
prohibiting such discharge 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. No person may discharge wastewater from high 
volume hydraulic fracturing or HVHF-related activities to waters or 
land within the Basin.

    Dated: October 28, 2021.
Pamela M. Bush,
Commission Secretary/Assistant General Counsel.
[FR Doc. 2021-24152 Filed 11-19-21; 8:45 am]
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