[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Rules and Regulations]
[Pages 7005-7007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02125]



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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: Final rule.

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SUMMARY: The Commission is amending its Comprehensive Plan and the 
Delaware River Basin Water Code concerning importations of water into 
and exportations of water from the Delaware River Basin; its Special 
Regulations--High Volume Hydraulic Fracturing, to prohibit discharges 
to waters or land within the basin of wastewater from high volume 
hydraulic fracturing (``HVHF'') and HVHF-related activities; and its 
Water Quality Regulations, to facilitate the implementation in state-
issued permits of the prohibition on such discharges.

DATES: This final rule is effective March 6, 2023. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of March 6, 2023.

FOR FURTHER INFORMATION CONTACT: Pamela M. Bush, Esquire, 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 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 Division Engineer, North Atlantic 
Division, U.S. Army Corps of Engineers, representing the Federal 
Government.

Background

    By a Resolution for the Minutes on February 25, 2021, the DRBC 
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 inter-basin transfers of water and wastewater 
from and into the basin and to ``include in the draft regulations such 
other proposed amendments . . . as [the Executive Director, in 
consultation with the Commissioners] deem necessary or appropriate.'' 
The directive followed the Commission's decision not to include in its 
final rule adopted in 2021, portions of a proposed rule published in 
the Federal Register in January 2018 that concerned the exportation of 
water to support high volume hydraulic fracturing (``HVHF'') and the 
importation, treatment, and discharge of ``produced water'' and ``CWT 
wastewater''(with accompanying definitions).\1\ In accordance with the 
Commission's February 25, 2021 directive, the Commission published a 
new proposed rule on November 22, 2021 (86 FR 66250). The draft 
regulations appeared on the Commission's website on October 28, 
2021,\2\ and notice of the proposed amendments appeared in the Delaware 
Register of Regulations, 25 Del. Reg. 548, 559, on December 1, 2021, 
the New Jersey Register, 53 N.J.R. 1994, on December 6, 2021, the New 
York Register on November 17, 2021, p. 2, and the Pennsylvania 
Bulletin, 51 Pa. B. 7471, on December 4, 2021.
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    \1\ See 86 FR 20628 (April 21, 2021) and 83 FR 1586, pp. 1589, 
1591 (January 12, 2018).
    \2\ By a Resolution for the Minutes dated September 9, 2021, the 
DRBC Commissioners extended from September 30, 2021 to November 30, 
2021 the date by which draft regulations would be published.
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    Opportunity for public input on the proposed rules was provided 
during a comment period that ran from October 28, 2021, through 
February 28, 2022. In addition to accepting written comments, the 
Commission accepted oral comment at five hearings conducted via Zoom 
and telephone. The fifth hearing included toll-free telephone access 
and real-time English-to-Spanish and Spanish-to-English professional 
translation, which allowed attendees to listen and participate in 
either English or Spanish. The Commission received a total of 2,461 
public comment submissions, consisting of 2,388 in writing and 73 oral 
comments. Notably, in many cases, a single written submission consisted 
of comments with multiple signatories or parts, and many similar or 
identical comments were separately submitted by multiple commenters 
using form letters or template language provided by organizations.
    The Commission reviewed the statements, consultant reports, 
scientific literature and other materials submitted by commenters. The 
staff, in consultation with the Commissioners, prepared a Comment and 
Response Document summarizing the comments on the proposed rule and 
setting forth the Commission's responses and revisions in detail. By 
Resolution No. 2022-04 on December 7, 2022, the Commission adopted the 
Comment and Response Document simultaneously with its adoption of the 
final rule.

Changes From the Proposed Rule

    Incorporation by reference: The final rule incorporates by 
reference into the Code of Federal Regulations the Commission's Water 
Quality Regulations and the Delaware River Basin Water Code (the 
``Water Code'') as amended by the Commission on December 7, 2022. For a 
discussion of the amendments, including changes from those proposed in 
October and November 2021, see ``Additional Materials'' below. The 
Water Code and Water Quality Regulations are reasonably available to 
regulated and other interested parties through the Commission's 
website, www.drbc.gov.
    Special Regulations--High Volume Hydraulic Fracturing: The final 
rule includes the addition of two words to section (1) of the proposed 
definition of ``Wastewater from HVHF and HVHF-related activities'' in 
Sec.  440.2 of the Special Regulations. The words ``or'' and 
``containing'' are added to clarify that the definition refers to 
wastewater, brine, or sludge containing (as opposed to constituting) 
the various listed contaminants. The final rule also includes a new 
defined term--``Discharge of wastewater from HVHF and HVHF-related 
activities''--to make the meaning and intended effect of the rules more 
explicit. Additional non-substantive changes were made to conform 
proposed rule text in Sec.  440.2 to Code of Federal Regulations 
standards.

Summary of Material Incorporated by Reference

    The Delaware River Basin Water Code consists of four articles 
applicable to public and private water projects and programs within the 
Delaware River Basin. Article I sets forth general policies of the 
Commission with respect to the planning of Federal, state and local 
projects, the Commission's comprehensive plan, and projects subject to 
the Commission's review. Article II sets forth measures for the 
conservation, development and utilization of the water resources of the 
basin, including the management of shared water resources during 
drought, provisions relating to inter-basin transfers of water, 
metering and reporting of withdrawals, and water audit requirements. 
Article III establishes water quality standards, including uses and 
quality objectives for surface and ground waters. Article IV

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contains rules relating to application of water quality standards 
within the basin.
    The Water Quality Regulations apply to all public and private 
entities that discharge waste to waters of the Delaware River Basin and 
are comprised of four articles. Article I sets forth general purposes 
of the Water Quality Regulations, as well as definitions applicable to 
the Water Quality Regulations. Article II concerns interstate 
cooperation among the signatories to the Delaware River Basin Compact. 
Article III sets forth water quality standards and guidelines for the 
Delaware River Basin. Article IV contains rules relating to application 
of water quality standards within the basin.

Activities Prohibited and Activities Not Regulated by the Final Rule

    Many commenters urged the Commission to prohibit activities that 
would be prohibited by the proposed (now final) prohibition at 18 CFR 
440.4. The final rule at Sec.  440.4(b) prohibits the discharge of 
wastewater ``from high volume hydraulic fracturing and HVHF-related 
activities to waters or land within the basin.'' The terms ``Discharge 
of wastewater from HVHF and HVHF-related activities,'' ``HVHF-related 
activities,'' and ``wastewater from HVHF and HVHF-related activities'' 
all are defined in detail in Sec.  440.2. Activities about which 
multiple commenters expressed concern, which are prohibited by the 
final rule include (but are not necessarily limited to) the following:
     discharge of HVHF wastewater to waters or land within the 
basin;
     road spreading of HVHF wastewater;
     injection of HVHF wastewater into deep wells within the 
basin;
     disposal of HVHF wastewater in basin landfills;
     discharge of leachate from any landfill in the basin that 
accepts HVHF waste after the effective date of the final regulations, 
including after treatment at an onsite or off-site leachate or 
wastewater treatment plant; and
     spills and leaks during transport, transfer, or storage of 
HVHF wastewater within the basin if not fully captured by a containment 
system in place throughout the duration of the spill or leak and 
thereafter promptly removed or remediated.
    Other commenters urged the Commission to prohibit activities that 
are beyond the scope of the proposed rule. As explained in detail in 
the Commission's Comment and Response document, the final rule does 
not:
     regulate air emissions from HVHF activities;
     regulate the transportation and storage of HVHF materials, 
which are regulated under detailed state and Federal programs focused 
on these activities;
     categorically prohibit the transfer of HVHF wastewater 
into the basin when no resulting discharge is proposed;
     categorically prohibit the transfer of water from the 
basin if it would be used to support HVHF (or any other specified 
activity). However, the rule does limit the circumstances under which 
transfers of water from the basin will be considered and provides for 
an evaluation of such proposals based on factors designed to ensure no 
harm to the basin's water resources or the health and safety of the 
basin community; or
     prohibit road spreading of wastewater from conventional 
drilling activities, an activity not within the scope of DRBC's 
proposed rulemaking. The Commission will continue to coordinate with 
the basin states to review the scientific evidence regarding harm to 
water resources caused by road spreading of conventional oil and gas 
production wastewater and may in the future consider whether additional 
regulation of the practice is needed in the basin.

Additional Materials

    Additional materials can be found on the Commission's website, 
www.drbc.gov, at https://www.nj.gov/drbc/about/regulations/final-rule_import-export-hvhf-discharge.html. These include links to 
Resolution No. 2022-04 of December 7, 2022 adopting the final rule; the 
Commission's Comment and Response Document; mark-ups comparing the 
final to the proposed rule text for Section 2.30 of the Water Code and 
for the Commission's Special Regulations at 18 CFR part 440; mark-ups 
comparing the amended to the existing rule text for 18 CFR part 440 and 
the Commission's Water Quality Regulations; and clean drafts of the 
amended and existing Section 2.30 of the Water Code for comparison.
    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.state.nj.us/drbc/meetings/proposed/notice_import-export-rules.html.

List of Subjects in 18 CFR Parts 410 and 440

    Incorporation by reference, Natural gas, Wastewater discharge, 
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 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 December 7, 2022 and the Administrative Manual--Part III Water 
Quality Regulations with Amendments through December 7, 2022. Both the 
Delaware River Basin Water Code and the Administrative Manual--Part III 
Water Quality Regulations are incorporated by reference into this 
section 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 this 
material at the Delaware River Basin Commission (DRBC), 25 Cosey Road, 
West Trenton, New Jersey 08628-0360, 609-883-9500, www.drbc.gov.
    You may inspect this material at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected].

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:

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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, dockets, permits, and determinations.
* * * * *

0
5. Amend Sec.  440.2 by revising the introductory text, adding, in 
alphabetical order, the definitions for ``Discharge of wastewater from 
HVHF and HVHF-related activities,'' ``HVHF-related activities,'' and 
``Wastewater from HVHF and HVHF-related activities,'' 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. Other definitions are consistent with terms 
defined by the Delaware River Basin Compact.
* * * * *
    Discharge of wastewater from HVHF and HVHF-related activities is an 
intentional or unintentional action or omission resulting in the 
releasing, spilling, leaking, pumping, pouring, emitting, emptying, 
spreading, spraying, injecting, leaching, dumping, or disposing of such 
wastewater to waters or land within the Basin, and including the 
abandonment or discarding of barrels, containers, and other receptacles 
containing such wastewater.
* * * * *
    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 HVHF and HVHF-related activities is:
    (1) Any wastewater, brine, or sludge containing 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 March 6, 2023; 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.
    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: January 26, 2023.
Pamela M. Bush,
Commission Secretary and Assistant General Counsel.
[FR Doc. 2023-02125 Filed 2-1-23; 8:45 am]
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