§ 803.42 - Standards for consumptive uses of water.

(a) Requirement. (1) Compensation shall be required for consumptive uses of water during periods of low flow. Compensation is required during periods of low flow for the purposes set forth in § 803.2.

(i) Surface water source. Compensation in an amount equal to the project's total consumptive use shall be required when the streamflow at the point of taking equals or is anticipated to equal the low flow criterion which is the 7-day 10-year low flow plus the project's total consumptive use and dedicated augmentation. The commission reserves the right to apply a higher low flow criterion for a particular stream reach when it finds, as the result of evidence presented at a public hearing that it is needed to serve the purposes outlined in paragraph (b)(1) of this section.

(ii) Ground-water source. Compensation for the project's consumptive use of ground water shall be required when the stream flow is less than the applicable low flow criterion. For the purposes of implementing this regulation, the commission will identify the appropriate stream gaging station for determining the applicable low flow.

(2) Consumptive uses by a project not exceeding an average of 20,000 gpd for any consecutive thirty-day period from surface or groundwaters are exempt from the requirement unless such uses adversely affect the purposes outlined in paragraph (b)(1) of this section.

(b) Method of Compensation. (1) Methods of compensation acceptable to the commission will depend upon the character of the project's source of water supply and other factors noted in this paragraph (b)(1).

(i) The required amount of compensation shall be provided by the applicant or project sponsor at the point of taking (for a surface source) or another appropriate site as approved by the commission to satisfy the purposes outlined in this paragraph (b) (1). If compensation for consumptive use from a surface source is to be provided upstream from the point of taking, such compensation shall reasonably assure no diminution of the flow immediately downstream from the point of taking which would otherwise exist naturally, plus any other dedicated augmentation.

(ii) Compensation may be provided by one, or a combination of the following:

(A) Construction or acquisition of storage facilities.

(B) Purchase of available water supply storage in existing public or private storage facilities, or in public or private facilities scheduled for completion prior to completion of the applicant's project.

(C) Purchase of water to be released as required from a water purveyor.

(D) Releases from an existing facility owned and operated by the applicant.

(E) Use of water from a public water supplier utilizing raw water storage that maintains a conservation release or flow-by, as applicable, of Q7-10 or greater at the public water supplier's point of taking.

(F) Ground water.

(G) Purchase and release of waters stored in other subbasins or watersheds.

(H) Other alternatives.

(2) Alternatives to compensation may be appropriate such as discontinuance of that part of the project's operation that consumes water, imposition of conservation measures, utilization of an alternative source that is unaffected by the compensation requirement, or a monetary payment to the commission in an amount to be determined by the commission from time-to-time.

(3) The commission shall, in its sole discretion, determine the acceptable manner of compensation or alternatives to compensation, as applicable, for consumptive uses by a project. Such a determination will be made after considering the project location, anticipated amount of consumptive use and its effect on the purposes set forth in § 803.2 of this part, and any other pertinent factors.

(c) Quantity of consumptive use. For purposes of evaluating a proposed project, the commission shall require estimates of anticipated consumptive use from the project sponsor. The commission, as part of the project review, shall evaluate the proposed methodology for monitoring consumptive losses and compensating flows including flow metering devices, stream gages, and other facilities used to measure the consumptive use of the project or the rate of streamflow. If the commission determines that additional flow measuring devices are required, these shall be provided at the expense of the project sponsor and shall be subject to inspection by the commission at any time. When the project is operational, the commission shall be responsible for determining when compensation is required and shall notify the project sponsor accordingly. The project sponsor shall provide the commission with periodic reports in the time and manner as it requires showing actual consumptive uses associated with the project. The commission may use this data to modify, as appropriate, the magnitude and timing of the compensating releases initially required when the project was approved.

(d) Quality of compensation water. The physical, chemical and biological quality of water used for compensation shall at all times meet the quality requirements for the purposes listed in § 803.2, as applicable.

(e) Effective date. Notwithstanding the overall effective date for other portions of this part set forth in § 803.1(e), this section shall apply to all consumptive uses initiated on or after January 23, 1971, the effective date of the compact.

(f) Public water suppliers, except to the extent that they are diverting the waters of the basin, shall be exempt from the requirements of this section; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply system from the requirements of this section.