[Federal Register Volume 59, Number 109 (Wednesday, June 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13831]
[[Page Unknown]]
[Federal Register: June 8, 1994]
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SUSQUEHANNA RIVER BASIN COMMISSION
18 CFR Parts 803, 804 and 805
Review and Approval of Projects; Special Regulations and
Standards; Hearings/Enforcement Actions
AGENCY: Susquehanna River Basin Commission (SRBC).
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: The Susquehanna River Basin Commission is proposing a
reorganized and revised set of regulations and procedures for review of
projects. These rules implement the commission's general project review
authority set forth in Section 3.10 of the Susquehanna River Basin
Compact and contain special review and approval requirements for
consumptive uses of water, ground-water withdrawals and surface water
withdrawals. In addition, new regulations are proposed to be added to
include special regulations on water withdrawal registration, water
conservation standards, public hearing procedures and imposition of
penalties or other enforcement actions. This proposal is prompted by:
The need to improve the overall precision and clarity of the
regulations; The need to reorganize the regulations into an integrated
format that is more readily understandable by the regulated community
and others who work with the regulations; The need to add provisions
covering subject matter not addressed or inadequately addressed in the
existing regulations; and The need to deal more effectively with
certain segments of the regulated community.
DATES: All written comments must be received by August 1, 1994. The
commission will hold a series of public hearings on the proposed
regulations as follows:
(1) June 23, 1994, 1:30 p.m. and 7 p.m., Apalachin, N.Y.
(2) June 24, 1994, 1 p.m., Williamsport, Pa.
(3) June 28, 1994, 10 a.m. and 7 p.m., Harrisburg, Pa.
(4) July 6, 1994, 1:30 p.m. and 7 p.m., Perryville, Md.
(5) July 14, 1994, 1:30 p.m., Easton, Md.
ADDRESSES: Submit comments to Richard A. Cairo, General Counsel/
Secretary, Susquehanna River Basin Commission, 1721 N. Front Street,
Harrisburg, Pa. 17102-2391. Addresses for public hearings: (1) The Fred
L. Waterman Conservation Education Center, Hilton Road, Apalachin,
N.Y.; (2) The Days Inn, River Ave. Exit from Rt. 180, Williamsport,
Pa.; (3) Pennsylvania Game Commission Headquarters Auditorium (10 a.m.)
2001 Elmerton Ave., Harrisburg, Pa.; SRBC Headquarters Building (7:00
p.m.), 1721 N. Front St., Harrisburg, Pa.; (4) Perryville High School,
Perryville, Md.; (5) The Tidewater Inn, 101 E. Dover Street, Easton,
Md.
FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel/
Secretary at the above address, or telephone 717/238-0423.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of
these proposed regulations by submitting such data, views, or arguments
as they may desire, either in writing or by making an oral statement at
one of the scheduled public hearings. The proposals contained in this
notice may be changed in light of the comments received.
Availability of NPRM
Any person may obtain a copy of this NPRM by submitting a request
to the commission at the above address.
Discussion
The proposed rules are the product of 12 months of intensive in
house review, input from a federal/state interagency advisory
committee, and consultation with the commission's signatory parties.
All parties involved in this process agreed that the existing SRBC
``Regulations and Procedures for Review of Projects,'' presently
codified at 18 CFR part 803, are badly in need of revision and
reorganization. The existing regulations were promulgated in several
separate pieces between 1975 and 1979. The first set of regulations was
put into place in 1975 to allow the commission to exercise its basic
project review authority under section 3.10 of the Susquehanna River
Basin Compact. section 803.61 regulating consumptive use of water was
added in 1976; section 803.62 regulating ground-water withdrawals was
added in 1978; and finally, water conservation standards were added via
section 803.63 in 1979.
As a result of this piecemeal promulgation, general procedures for
review of projects set forth in the initial set of regulations do not
always mesh cleanly with the more specific requirements of the special
regulations on consumptive use and ground-water withdrawals. For
example, the regulated community has confused the effective date for
general project review with the more specific effective dates set forth
in sections 803.61 & 803.62. There has also been confusion about
whether project review applications should be submitted directly to the
commission or through signatory agencies.
The commission attempted to correct these types of deficiencies
with certain regulatory amendments adopted in 1990; however, the
confusion persists in the regulated community and even among the
signatory party agencies who cooperate with the commission in the
management of the river basin's water resources. Subpart B--Application
Procedure, as it is presently written, directs the sponsors of certain
types of projects to apply to the commission, though ultimately these
projects may not require commission approval. This has been a constant
source of confusion, as applicants and others who work with the
regulation find it difficult to distinguish the application process
from the approval process.
The proposed regulations consolidate the disparate portions of the
regulations and establish a procedure for determining whether a project
is subject to commission approval before an application is filed.
Projects requiring approval are clearly listed. Sponsors of other
projects which may require approval are directed to seek a
determination from the commission's executive director.
Beyond the need for a reorganized format, there is also a need to
add provisions covering subject matter either not addressed in the
current regulation or inadequately addressed therein. For example,
there is no existing regulation applying to surface water withdrawals.
The proposed regulations will add an explicit section requiring
approval of surface water withdrawals exceeding 100,000 gpd.
A new Part 804 is created to house a water withdrawal registration
requirement for any withdrawal exceeding 10,000 gpd. Existing section
803.63 on water conservation standards is also moved into the new Part
804.
A new Part 805 houses procedures governing the holding of public
hearings, including hearings or additional hearings conducted as
adjudicatory hearings. The current regulations contain only the barest
of provisions on the conduct of hearings. Criteria and procedures for
the imposition of penalties and abatement or remedial requirements on
alleged violators of commission regulations and orders are also
included in this part. Settlements are also permitted with alleged
violators.
A final reason for this package of revisions and additions is the
need to deal more effectively with certain segments of the regulated
community. For example, the existing consumptive use regulation 803.61
applies to agricultural activities such as crop irrigation.
Nevertheless, agricultural compliance with the regulation has been
spotty and inconsistent due mainly to a lack of knowledge of the
regulation in the agricultural community and SRBC enforcement
limitations. When the commission made an affirmative effort to inform
the agricultural community of these requirements, agriculture quickly
responded on the need for adjustments in the regulation to take into
account the special compliance problems faced by farmers. As a result,
special provisions have been included in the revised consumptive use
regulation extending a 50% compliance credit to agricultural
consumptive users as an incentive for their up front compliance with
the regulation.
Summary of Additions and Changes
The following is a section-by-section summary of the additions and
changes made by the proposed rules.
PART 803--REVIEW AND APPROVAL OF PROJECTS
Subpart A--General Provisions
Section 803.1--Introduction (change)
Roughly like original format but revised to note that scope of
review includes consumptive use, ground-water withdrawal, and surface
water withdrawal projects, as well as those reviewed and approved under
section 3.10 of the compact.
Also, savings clause added in (d) in case any portion declared
invalid.
Section 803.2--Purposes (new)
Unlike prior regulations, the purposes of all the review
regulations are consolidated and set forth in one place.
Section 803.3--Definitions (new)
Unlike prior regulations, virtually all definitions are
consolidated and set forth in one place.
Section 803.4--Projects Requiring Review and Approval (change)
Only projects which clearly and unambiguously require commission
approval under the compact or the special sections on consumptive use
and water withdrawals are set forth in this section.
Section 803.5--Projects Which May Require Review and Approval (new)
All other projects which fall into an uncertain or ambiguous
category as to the requirement for SRBC approval are set forth and
directed to file a ``request for determination'' with the executive
director.
Section 803.6--Concurrent Project Review by Signatory Parties (change)
This section providing for cooperation with signatory agencies on
project review is left mostly unchanged; however, previous provisions
providing that, in some instances, application to a signatory is
tantamount to application to the commission, are removed. All
applications should come directly to the commission unless the
commission has a clear and workable arrangement with a signatory agency
to do otherwise.
Section 803.7--Waiver/Modification (change)
Previously only included in the ground-water regulation. This
section gives it general application, allowing waiver of any
requirement if consistent with the purposes of the regulation.
Subpart B--Application Procedure
Section 803.22--Request for Determination (new)
This section outlines the procedure for submitting a ``request for
determination'' to the executive director in the event a project falls
into a classification that makes the need for commission approval a
possibility. It goes on to describe the method by which the director
goes on to make his/her determination, how that determination is
published, how requests for reconsideration can be filed with the
director, and how the director's final determination can be appealed to
the commission.
Section 803.23--Submission of Application (change)
This section plainly sets forth the requirement for submission of
an application for a project requiring approval or determined to
require approval.
Section 803.24--Contents of Application (change)
Not radically changed but does include special requirement for
additional information in the case of a proposed diversion.
Section 803.25--Notice of Receipt of Application (change)
Broadened to include notification of additional parties beyond the
local media that an application has been received including the local
municipality and the county planning agency. The responsibility of
publishing a notice of submission of an application in a local
newspaper is placed upon the applicant. Contents of the notice are
generally prescribed.
Section 803.26--Staff Review/Action/Recommendations (new)
A clear statement of what actions staff takes, once it receives an
application right up to formal docketing of the project and action by
the commission.
Section 803.27--Emergencies (change)
Revised to allow the executive director to allow emergency
``actions,'' rather than an emergency ``approval.'' It should be clear
that only the commission has authority to approve a project. The
commission should not simply be ratifying an approval by the executive
director.
Section 803.28--Application/Monitoring Fees (new)
Explicit reference to authority to impose these fees. This had not
been included in previous regs and the agency has been relying only on
a separate resolution of the commission.
Subpart C--Terms and Conditions of Approval
Section 803.30--Duration of Approvals (new)
Sets definite limits on duration of SRBC approvals. Approvals would
be for 25 years or the duration of an accompanying signatory permit if
one exists. If there is no duration on an accompanying permit, the
duration of commission approval will be 25 years. This provision is
made retroactive to previous commission approvals.
A paragraph is also included providing that, unless an approved
project is implemented within three years, commission approval expires.
This may be extended by the commission.
Section 803.31--Transferability of Approvals (new)
Sets forth conditions for the transferability of SRBC approvals.
Section 803.32--Reopening/Modification (new)
Explicitly sets forth in the regulations themselves what had only
been included as a docket condition, i.e. right to reopen and modify a
docket decision to protect the public, health, safety and welfare.
Section 803.33--Interest on Fees (new)
Explicitly sets forth what had only been a policy and covers any
kind of fee payable to the SRBC, not just application and monitoring
fees.
Subpart D--Standards for Review and Approval
Section 803.40--Purpose of this Subpart (new)
The purpose of this subpart is to set forth general review
standards for all projects and special standards for consumptive use,
ground-water withdrawal and surface water withdrawal regulations.
Section 803.41--General Standards (new)
The original regulations did not make clear the criteria for
approval of a project which are so clearly set forth in Section 3.10 of
the compact. This section reiterates those criteria.
Section 803.42--Standards for Consumptive Uses of Water (change)
This section includes the remnants of old Section 803.61 minus the
definitions and general terms and conditions which have been
consolidated elsewhere. Significant changes include: (1) The addition
of public water suppliers in paragraph (j); (2) The special 50% credit
for ag consumptive use and a general approval procedure in paragraph
(h); and (3) The ``certificate of pre-compact use'' procedure in
Paragraph (i) which greatly limits grandfathering of pre-compact
consumptive uses but does allow transfers to subsequent owners of land
on which agricultural consumptive uses are located. Also, list of
methods for providing compensation is eliminated in favor of a method
or methods acceptable to the commission (paragraph b); ground-water as
a source of make-up is virtually eliminated with its only use being
made an alternative to compensation, rather than a method of
compensation; the definitions of consumptive use, low flow and trigger
flow are amended. (see Section 803.3) The effective date of this
section is preserved as January 23, 1971.
Section 803.43--Standards for Ground-water Withdrawals (change)
This section includes the remnants of old Section 803.62 minus the
definitions and general terms and conditions which have been
consolidated elsewhere. Significant changes are few but include
elimination of the five year review, elimination of any exemptions to
the metering requirement, and a new definition of a ``ground-water
source'' (See Section 803.3). The effective date of this section is
preserved as July 13, 1978 and grandfathered withdrawals which increase
their taking are required to apply to the commission for approval.
Section 803.44--Standards for Surface Water Withdrawals (new)
This section provides for SRBC approval of surface water
withdrawals exceeding 100,000 gpd. It removes any past ambiguity
regarding when the SRBC must approve a surface water withdrawal.
Previously, the commission had relied solely on the general authority
of Section 3.10 of the compact to review surface water withdrawals
rather than a set of separately promulgated standards. This section
removes any legal uncertainty regarding when a surface water withdrawal
must be approved. The regulation itself is modeled closely after the
ground-water regulation and becomes effective with the adoption of the
omnibus package except for withdrawal projects previously approved by
the commission.
PART 804--SPECIAL REGULATIONS AND STANDARDS
Subpart A--Water Withdrawal Registration
Sections 804.1-804.4 (new)
These sections require registration of water withdrawals exceeding
10,000 gpd, set forth time requirements for registration, allow
registration through administrative agreements with signatory parties,
and become effective with this proposed package of revisions.
Subpart B--Water Conservation Requirements
Sections 804.20 and 804.21 (change)
Some minor wording changes to cover direct and indirect
withdrawals, correct phrasing inconsistencies, and add a clear
effective date of January 11, 1979.
PART 805--HEARINGS/ENFORCEMENT ACTIONS
Subpart A--Conduct of Hearing
Sections 805.1-805.6 (change)
These sections greatly broaden rules pertaining to public hearings.
The occasions when public hearings are held are detailed, participants
are listed and a presiding officer is designated. Additional provisions
are included for the holding of an adjudicatory hearing. An
adjudicatory hearing procedure is set forth, the powers of the hearing
officer prescribed, hearing costs are assessed, and provisions are made
for a report and action by the commission. Hearings may be consolidated
or held jointly with other agencies. Hearings may also be continued for
good cause.
Subpart B--Enforcement Actions and Settlements
Sections 805.20-805.28 (new)
These sections provide a procedure for assessing penalties or
making abatement and remedial action orders against violators of
commission regulations or orders. Alleged violators can be ordered by
the executive director to appear before the commission and show cause
why a penalty should not be assessed; an adjudicatory hearing can be
held if necessary; factors to be considered in assessing a penalty are
listed; and a possible settlement with alleged violators is allowed.
List of Subjects
18 CFR Part 803
Administrative practice and procedure; water resources.
18 CFR Part 804
Water resources.
18 CFR Part 805
Administrative practice and procedure.
Dated: May 31, 1994.
Paul O. Swartz,
Executive Director.
Accordingly, Chapter VIII of title 18 of the Code of Federal
Regulations is proposed to be amended as set forth below:
1. Part 803 is revised to read as follows:
PART 803--REVIEW AND APPROVAL OF PROJECTS
Subpart A--General Provisions
Sec.
803.1 Introduction.
803.2 Purposes.
803.3 Definitions.
803.4 Projects requiring review and approval.
803.5 Projects which may require review and approval.
803.6 Concurrent project review by signatory parties.
803.7 Waiver/modification.
Subpart B--Application Procedure
803.20 Purpose of this subpart.
803.21 Preliminary consultations.
803.22 Request for determination.
803.23 Submission of application.
803.24 Contents of application.
803.25 Notice of application.
803.26 Staff review/action/recommendations.
803.27 Emergencies.
803.28 Application/monitoring fees.
Subpart C--Terms and Conditions of Approval
803.30 Duration of approvals.
803.31 Transferability of approvals.
803.32 Reopening/modification.
803.33 Waiver/modification.
803.34 Interest on fees.
Subpart D--Standards for Review and Approval
803.40 Purpose of this subpart.
803.41 General standards.
803.42 Standards for consumptive uses of water.
803.43 Standards for ground-water withdrawals.
803.44 Standards for surface-water withdrawals.
Authority: Secs. 3.4, 3.8, 3.10 and 15.2, Pub. L. 91-575, 84
Stat. 1509 et seq.
Subpart A--General Provisions
Sec. 803.1 Introduction.
(a) This part establishes the scope and procedures for review and
approval of projects under Section 3.10 of the Susquehanna River Basin
Compact, Public Law 91-575, 84 Stat. 1509 et seq., (the compact) and
establishes regulations governing water withdrawals, and the
consumptive use of water.
(b) Except for activities relating to site evaluation, no person or
governmental entity shall begin construction or operation of any
project subject to commission review and approval until such project is
approved by the commission.
(c) When projects subject to commission review and approval are
sponsored by governmental entities, the commission shall submit
recommendations and findings to the sponsoring agency which shall be
included in any report submitted by such agency to its respective
legislative body or to any committee thereof in connection with any
request for authorization or appropriation therefor. The commission
review will ascertain the project's compatibility with the objectives,
goals, guidelines and criteria set forth in the comprehensive plan. If
determined compatible, the said project will also be incorporated into
the comprehensive plan if so required by the compact.
(d) If any portion of this part shall, for any reason, be declared
invalid by a court of competent jurisdiction, all remaining provisions
shall remain in full force and effect.
(e) Except as otherwise stated in this part, this part shall be
effective on [effective date of final rule]; provided, however, that
nothing in this paragraph shall be deemed to exempt any project which
has been or could have been subject to review and approval by the
commission under the authority set forth in Section 3.10 of the compact
or any prior regulations of the commission.
(f) When any period of time is referred to in this part, such
period in all cases shall be so computed as to exclude the first and
include the last day of such period. Whenever the last day of any such
period shall fall on Saturday or Sunday, or on any day made a legal
holiday by the law of the United States, such day shall be omitted from
the computation.
Sec. 803.2 Purposes.
(a) The general purposes of this part are to advance the purposes
of the compact and include but are not limited to:
(1) The promotion of interstate comity;
(2) The conservation, utilization, development, management, and
control of water resources under comprehensive, multiple purpose
planning; and
(3) The direction, supervision and coordination of water resources
efforts and programs of federal, state and local governments and of
private enterprise.
(b) In addition, Secs. 803.42, 803.43 and 803.44 contain the
following specific purposes: Protection of public health, safety and
welfare; stream quality control; economic development; protection of
fisheries and aquatic habitat; recreation; dilution and abatement of
pollution; the regulation of flows and supplies of surface and ground
waters; the avoidance of conflicts among water users; the prevention of
undue salinity; and protection of the Chesapeake Bay.
(c) The objective of all interpretation and construction of this
part is to ascertain and effectuate the purposes and the intention of
the commission set out in paragraph (b) of this section.
Sec. 803.3 Definitions.
For purposes of this part, the words listed in this section are
defined as follows:
Agricultural consumptive use. A consumptive use associated
primarily with the raising of food or forage crops, trees, flowers,
shrubs, turf, aquaculture and livestock.
Application. A request for action by the commission in written form
including without limitation thereto a letter, referral by any agency
of a signatory party, or an official form prescribed by the commission.
Basin. The Susquehanna River basin.
Commission. The Susquehanna River Basin Commission, a body politic
created under Article 2, Section 2.1 of the compact.
Compensation. Water utilized or provided from surface storage as
makeup for a project's consumptive use.
Comprehensive Plan. The ``Comprehensive Plan for Management and
Development of the Water Resources of the Susquehanna River Basin''
prepared and adopted by the commission pursuant to Article 3, Section
3.3 of the compact.
Consumptive use. Consumptive use is the loss of water from a
ground-water or surface water source through a manmade conveyance
system (including such water that is purveyed through a public water
supply system), due to transpiration by vegetation, incorporation into
products during their manufacture, evaporation, diversion from the
Susquehanna River basin, or any other process by which the water
withdrawn is not returned to the waters of the basin undiminished in
quantity. Deep well injection shall not be considered a return to the
waters of the basin.
Construction. Clearing or excavation of the site or installation of
any portion of the project on the site.
Dedicated augmentation. Release from an upstream storage facility
which is required for any other instream or withdrawal use.
Deep Well Injection. Injection of waste or wastewater substantially
below aquifers containing fresh water.
Diversion. The transfer of water into or from the basin.
Executive Director. The chief executive officer of the commission
appointed pursuant to Article 15, Section 15.5 of the compact.
Governmental entity. The federal government, the signatory states,
their political subdivisions, public corporations, public authorities
and special purpose districts.
Ground-water source. (1) Pumped wells or well fields;
(2) Flowing wells;
(3) Pumped quarries, pits, and underground mines having no
significant surface water inflow (significant meaning that any surface
water inflow is greater than the withdrawal); or
(4) A spring in which the water level is sufficiently lowered by
pumping to eliminate the surface flow. All other springs will be
considered to be surface water.
Low flow. Any flow less than or equal to the trigger flow.
Person. An individual, corporation, partnership, unincorporated
association, and the like and shall have no gender and the singular
shall include the plural.
Pre-Compact Use. The maximum average quantity or volume of water
consumptively used over any consecutive 30 day period prior to January
23, 1971 expressed in ``gallons per day''.
Project. Any work, service, activity, or facility undertaken which
is separately planned or financed for the conservation, utilization,
control, development, or management of water resources which can be
established and utilized independently, or as an addition to an
existing facility, and can be considered as a separate entity for
purposes of evaluation.
Signatory party. The States of Maryland and New York, the
Commonwealth of Pennsylvania, and the federal government.
Signatory state. The States of Maryland and New York, the
Commonwealth of Pennsylvania.
Sponsor. Any person or governmental entity proposing to undertake a
project. The singular shall include the plural.
Surface water source. Any river, stream, lake, pond, spring,
wetland or other body of surface water situated in the basin.
Susquehanna River basin. The area of drainage of the Susquehanna
River and its tributaries into the Chesapeake Bay to the southern edge
of the former Pennsylvania Railroad Bridge between Havre de Grace and
Perryville, Maryland.
Trigger flow. The 7-day 10-year low flow value plus the project's
approved consumptive use and any dedicated augmentation, measured at an
appropriate stream gage location.
Water(s). Surface and ground water(s) contained within the
Susquehanna River basin either before or after withdrawal.
Sec. 803.4 Projects requiring review and approval.
The following projects are subject to review and approval by the
commission and require an application to be submitted to the commission
in accordance with the procedures outlined in Sec. 803.23:
(a) Projects on or crossing the boundary between two signatory
states;
(b) Projects involving the diversion of water;
(c) Projects resulting in a consumptive use of water exceeding an
average of 20,000 gallons per day (gpd) for any consecutive thirty-day
period or such other amounts as stipulated in Sec. 803.42;
(d) Projects withdrawing in excess of an average of 100,000 gpd for
any consecutive thirty-day period from a ground-water or surface water
source or such other amounts as stipulated in Secs. 803.43 and 803.44;
and
(e) Projects which have been included by the commission in its
comprehensive plan.
Sec. 803.5 Projects which may require review and approval.
The following projects, if not already covered under Sec. 803.4,
may be subject to commission review and approval and require, in
accordance with the procedures outlined in Sec. 803.22, a ``request for
determination'' to be submitted to the executive director:
(a) Projects which may change interstate water quality standards or
criteria.
(b) Projects within a signatory state that have the potential to
affect waters within another signatory state. This includes but is not
limited to projects which have the potential to alter the physical,
biological, chemical or hydrological characteristics of water and
related natural resources of interstate streams designated by the
commission under separate resolution.
(c) Projects which may have a significant effect upon the
comprehensive plan.
(d) Projects not included in paragraphs (a) through (c) of this
section, but which could have an adverse, adverse cumulative, or
interstate effect on the water resources of the basin; provided that
the project sponsor is notified in writing by the executive director
that it shall submit a ``request for determination''.
Sec. 803.6 Concurrent project review by signatory parties.
(a) The commission recognizes that agencies of the signatory
parties will exercise their review authority and evaluate many proposed
projects in the basin. The commission will adopt procedures to assure
compatibility between signatory review and commission review.
(b) To avoid duplication of work and to cooperate with other
government agencies, the commission may develop agreements of
understanding in accordance with the above procedures with appropriate
agencies of the signatory parties regarding joint review of projects.
These agreements may provide for joint efforts by staff, delegation of
authority by an agency or the commission, or any other matter to
support cooperative review activities. Permits issued by a signatory
agency shall be considered commission approved if issued pursuant to an
agreement of understanding with the commission specifically providing
therefor.
Sec. 803.8 Waiver/modification.
The commission may, in its discretion, waive or modify the
requirements of this part if the essential purposes set forth in
Sec. 803.2 continue to be served.
Subpart B--Application Procedure
Sec. 803.20 Purpose of this subpart.
The purpose of this subpart is to set forth procedures governing
applications required by Secs. 803.4 and 803.5.
Sec. 803.21 Preliminary consultations.
(a) Any sponsor of a proposed project that is or may be subject to
the commission's review jurisdiction under Sec. 803.4 or Sec. 803.5 is
encouraged, prior to making application for commission review, to
request a preliminary consultation with the commission staff for an
informal discussion of preliminary plans for the proposed project. To
facilitate preliminary consultations, it is suggested that the sponsor
provide a general description of the proposed project, a map showing
its location and, to the extent available, data concerning dimensions
of any proposed structures and the environmental impacts.
(b) Preliminary consultations shall be optional with the project
sponsor and shall not relieve the sponsor from complying with the
requirements of the compact or with this part.
Sec. 803.22 Request for determination.
(a) Sponsors of projects which may require review and approval, as
described in Sec. 803.5, shall submit a ``request for determination''
to the executive director with such accompanying information and data
as the executive director shall prescribe.
(b) If a project sponsor is uncertain whether a ``request for
determination'' should be filed with the commission, the sponsor may
ask for and, within thirty days after submission of information in such
form and manner as will allow the executive director to make a
decision, receive from the executive director a letter stating whether
a ``request for determination'' should be filed. The executive director
may also direct a project sponsor to submit a ``request for
determination.''
(c) Within thirty days of the receipt of such ``request for
determination,'' the executive director shall determine whether the
said project must be reviewed and approved by the commission. In making
such determination, the executive director shall be guided primarily by
his/her findings as to the following factors:
(1) Whether the proposed project will have a significant interstate
effect on water supply, stream flows, aquifers, water quality,
flooding, sensitive land areas, aquatic or terrestrial forms of plant
or animal life, historical or cultural resources, or any other water-
related resource.
(2) Whether the proposed project will have a significant impact
upon the goals, objectives, guidelines, plans, or projects included in
the comprehensive plan.
(3) Whether the proposed project may have an adverse or adverse
cumulative effect on the water resources of the basin.
(d) The executive director shall notify the sponsor of the project,
the agency of the signatory party, if any, reviewing the project, the
governing body of each municipality and the planning agency of each
county in which the project is located of his/her initial determination
under this section. Notice to the sponsor shall be by certified mail,
and to all other interested parties by regular, first class mail. At a
cost to be assessed to the project sponsor, the executive director
shall also publish in a newspaper of general circulation in that
municipality, at least once, a notice of such determination. If no
objection is made to the executive director's initial determination, it
shall become final ten days after publication as set forth in this
paragraph.
(e) Any interested party objecting to the determination may, within
ten days of the newspaper publication, object to such determination and
appeal to the executive director by letter for reconsideration.
Following such reconsideration, if requested, the executive director
shall serve notice upon the agency of the signatory party, the
applicant and each such objector of his/her determination. Any such
party may appeal such final determination to the commission by notice
in writing served upon the executive director within 14 days after the
service of the executive director's decision upon reconsideration. The
commission will determine such appeal at a regular meeting thereafter.
Sec. 803.23 Submission of application.
(a) Sponsors of projects requiring the review and approval of the
commission under Sec. 803.4, or determined to require the approval of
the commission under Sec. 803.22, shall, prior to the time the project
is undertaken, submit an application to the commission. The application
shall be submitted to the commission at its headquarters, 1721 N. Front
Street, Harrisburg, Pennsylvania 17102-2391, and shall contain the
information prescribed in Sec. 803.24.
(b) An application shall not be deemed to be pending before the
commission until such time as the information required under
Sec. 803.24 has been provided and any applicable fee has been paid.
(c) As determined from applications or otherwise, the commission
shall review and either approve, approve with conditions or
modifications, or disapprove such projects.
Sec. 803.24 Contents of application.
(a) Applications shall be submitted on forms prescribed by the
commission.
(b) If no forms are prescribed by the commission for a particular
type of project, the sponsor shall submit an application addressing the
following items (as they may be) applicable to the project:
(1) Identification of sponsor and name of person authorized to
speak for the sponsor.
(2) Description of project and site in terms of:
(i) Water use and availability.
(ii) Engineering feasibility.
(iii) Ability of sponsor to fund the project or action.
(iv) Project location.
(v) Project purpose.
(vi) Identification and description of reasonable alternatives, the
extent of their economic and technical investigation, and an assessment
of their potential environmental impact. In the case of a proposed
diversion, the sponsor should include information: Detailing the
efforts that have been made to develop its own in-basin sources of
water; and demonstrating that the proposed diversion will not
substantially impede the ability of the Susquehanna River basin to meet
its own water needs.
(vii) Supporting studies, reports and other information upon which
assumptions and assertions have been based.
(viii) Compatibility of proposed project with existing and
anticipated uses.
(ix) Plans for avoiding or compensating for consumptive use during
low flow periods.
(x) Anticipated impact of the proposed project on:
(A) Flood damage potential considering the location of the project
with respect to the flood plain and flood hazard zones;
(B) Surface water characteristics (quality, quantity, flow regimen,
other hydrologic characteristics);
(C) Recreation potential;
(D) Fish and wildlife (habitat quality, kind and number of
species);
(E) Natural environment uses (scenic vistas, natural and manmade
travel corridors, wild and wilderness areas, wild, scenic and
recreation rivers);
(F) Site development considerations (geology, topography, soil
characteristics, adjoining and nearby land uses, adequacy of site
facilities); and
(G) Historical, cultural and archaeological impacts.
(3) Governmental considerations:
(i) Need for governmental services or finances.
(ii) Commitment for government to provide services or finances.
(iii) Status of application with other governmental regulatory
bodies.
(4) Project completion date and construction schedule.
(c) A report about the project prepared for any other purpose, or
an application for approval prepared for submission to a signatory
party, may be accepted by the commission provided the said report or
application addresses the applicable items listed in paragraph (b) of
this section.
Sec. 803.25 Notice of application.
(a) The project sponsor shall, within ten days of the submission of
an application to the commission, notify area and regional news media,
each municipality and the planning agency for each county in which the
project is situated, contiguous property owners and all other
interested parties known to the project sponsor or the commission, that
an application has been submitted to the commission. The commission
shall compile a list of additional interested parties who comment on
the application, request a hearing or make inquiries concerning the
application. The project sponsor shall also publish at least once in a
newspaper of general circulation in that municipality a notice of the
submission of the application which contains a sufficient description
of the project, its purpose and its location. Both the notification and
the notice shall contain the address and phone number of the
commission.
(b) The project sponsor shall provide the commission with a copy of
the return receipt for the required municipal notification and a proof
of publication for the required newspaper notice. The project sponsor
shall also provide certification or documentation acceptable to the
commission that it has made such other notifications as required under
paragraph (a) of this section. Until these items are provided to the
commission, processing of the application will not proceed.
Sec. 803.26 Staff review/action/recommendations.
(a) The commission's staff shall review the application, and if
necessary, request the sponsor to provide any additional information
that is deemed pertinent for proper evaluation of the project. The
staff review shall include:
(1) Determination of completeness of the application. An
application deemed incomplete will not be processed.
(2) Identification of the issues pertinent to commission review.
(3) Assessment of the project's compatibility with the compact,
comprehensive plan, and with the other requirements of this part.
(4) Consultation with the project sponsor if requested or deemed
necessary.
(5) Determination of the appropriate application fee and the
transmission of a billing to the project sponsor for that fee.
Applications will not be presented to the commission for review and
action until such application fee has been paid.
(6) Formal docketing of the project and, within 90 days of receipt
of a complete application, presentation to the commission along with
the recommendations of the staff for disposition of the application.
The executive director may, for good cause, extend this review period
for up to an additional 60 days. Any further extension must be approved
by the commission.
(b) If the project sponsor fails to respond to the commission's
request for additional information, the commission may notify the
project sponsor that the application process has been terminated. To
reactivate the closed file, the project sponsor shall reapply and may
be required to submit new or updated evaluations.
Sec. 803.27 Emergencies.
In the event of an emergency requiring immediate action to protect
the public health, safety and welfare or to avoid substantial and
irreparable injury to any person, property, or natural resources and
the circumstances do not permit a review and determination in the
regular course of the regulations in this part, the executive director,
with the concurrence of the chairperson of the commission and the
member from the affected signatory state, may issue an emergency
certificate authorizing a project sponsor to take such action as the
executive director may deem necessary and proper in the circumstances,
pending review and determination by the commission as otherwise
required by this part.
Sec. 803.28 Application/monitoring fees.
The commission may, by separate resolution, establish and modify
fees for the submission and processing of applications and for the
monitoring of project compliance with this part.
Subpart C--Terms and Conditions of Approval
Sec. 803.30 Duration of approvals.
(a) Approvals issued under this part shall have a duration equal to
the term of any accompanying signatory permit or license regulating the
same subject matter. If there is no such accompanying license or permit
or if no term is specified in such accompanying license or permit, the
duration of a commission approval issued hereunder shall be 25 years,
unless otherwise stipulated by the commission in the project's docket
approval. This provision applies to all projects previously approved by
the commission under this part.
(b) For projects that have been approved by the commission but not
implemented, approval by the commission under this part shall expire
three years from the date of commission action. Likewise, if the use of
a project is discontinued for such a period of time and under such
circumstances that an abandonment of the project may reasonably be
inferred, the commission may rescind a prior approval for such
abandoned project. In either case, an approval may be extended or
renewed by the commission upon request.
(c) The sponsors of projects previously approved by the commission
should apply for renewal of their approvals no later than within six
months of the expiration of their previous approval.
Sec. 803.31 Transferability of approvals.
Approvals by the commission are transferable to new owners of
projects, provided that the transferors or the transferees notify the
commission of the transfer either before or within 60 days after the
date of the transfer and that the new owners, within 30 days of being
requested to do so by the commission, submit in writing their intention
to comply with all conditions of the project's docket approval and
assume all other associated obligations. The commission may waive or
extend any of these deadline periods for good cause.
Sec. 803.32 Reopening/modification.
Once approved, the commission, upon its own motion, or upon
application of the project sponsor or any interested party, may at any
time reopen any project docket and make additional orders that may be
necessary to mitigate or avoid adverse impacts or to otherwise protect
the public health, safety, and welfare or natural resources.
Sec. 803.33 Interest on fees.
The commission may, by resolution, establish interest to be paid on
all overdue or outstanding fees of any nature that are payable to the
commission.
Subpart D--Standards for Review and Approval
Sec. 803.40 Purpose of this subpart.
The purpose of this Subpart is to set forth standards that shall be
used by the commission to evaluate proposed projects pursuant to
Secs. 803.4 and 803.5. General standards applying to all projects and
special standards applying to certain types of projects are set forth
in this subpart. This subpart does not identify all the aspects of a
proposed project that will be evaluated, nor should it be construed as
a self-imposed limitation upon the commission's authority and scope of
review.
Sec. 803.41 General standards.
(a) A project shall not be detrimental to the proper conservation,
development, management, or control of the water resources of the
basin.
(b) The commission may modify and approve as modified, or may
disapprove, a project if it determines that the project is not in the
best interest of the conservation, development, management, or control
of the basin's water resources, or is in conflict with the
comprehensive plan.
Sec. 803.42 Standards for Consumptive Uses of Water.
(a) Requirement. (1)(i) Compensation in an amount equal to the
project's total consumptive use shall be required when the streamflow
at the appropriate gaging station is or is anticipated to be less than
or equal to the trigger flow. The commission reserves the right to
modify the trigger flow 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 Sec. 803.2. For the purposes of
implementing this section, the commission will identify the appropriate
stream gaging station for determining the applicable trigger flow.
(ii) Consumptive uses by a project not exceeding an average of
20,000 gpd for any consecutive thirty-day period are exempt from the
requirement unless such uses have a significant adverse affect on the
purposes outlined in Sec. 803.2.
(iii) The required amount of compensation shall be provided by the
applicant or project sponsor near or above the point of taking or
another appropriate site as approved by the commission to satisfy the
purposes outlined in Sec. 803.2.
(2) 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 which would otherwise exist
naturally immediately downstream from the point of taking, plus any
other dedicated augmentation.
(b) Method of compensation. (1) Compensation may be provided by
construction, acquisition or utilization of storage facilities
acceptable to the commission or by a monetary payment to the commission
in an amount and method to be determined by the commission from time-
to-time for the purpose of developing, operating or maintaining makeup
water storage or taking such other action as may improve the basinwide
management of low flows.
(2) Alternatives to compensation may be appropriate such as
discontinuance of that part of the project's operation that consumes
water, use of conservation measures or use of an alternative source
that is unaffected by the compensation requirement.
(3) The commission shall, in its sole discretion, determine the
acceptable manner of compensation, alternatives to compensation, or
combinations thereof, as applicable, for consumptive use 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 Sec. 803.2, 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. In no case shall consumptive
use exceed the maximum consumptive use approved by the commission. In
setting this maximum amount, the commission shall apply the same
criteria it uses to limit ground-water withdrawals under Sec. 803.43
and surface water withdrawals under Sec. 803.44.
(d) Metering, monitoring and reporting requirements. 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
applicant 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
the commission 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.
(e) Quality of compensation water. The water used for compensation
shall at all times meet the quality requirements for the purposes
listed in Sec. 803.2, as applicable.
(f) Effective date. Notwithstanding the overall effective date for
other portions of this part set forth in Sec. 803.1(e), this section
shall apply to all consumptive uses initiated on or after January 23,
1971, the effective date of the compact. Any project that has initiated
consumptive use on or after this effective date is subject to this
section. The sponsor of any project initiated before this effective
date shall be issued or may apply for a certificate of pre-compact use
under the conditions set forth in paragraph (i) of this section.
(g) Public water suppliers. Public water suppliers shall be subject
to the requirements of this section; provided, however, that nothing
herein shall be construed to exempt individual consumptive users
connected to any such public water supply system from the requirements
of this section; and provided further that such public water suppliers
shall receive a credit against the amount of their consumptive use for
each consumptive user connected to their system that is or should be
regulated by the commission under this section. Existing public water
suppliers subject to this section shall submit an application to the
commission pursuant to this part upon being notified by the commission
to do so.
(h) Agricultural consumptive use. (1) The sponsors of agricultural
consumptive use projects may receive a 50 percent credit toward the
amount of compensation or alternative to compensation they must make
under the requirements of this part. To receive this credit, the
sponsors of existing projects shall both register with the commission
pursuant to part 804, subpart A, of this chapter and submit an
application to the commission pursuant to this section by April 30,
1996. In no case shall the sponsors of such existing projects be
required to implement the method of compensation required under
paragraph (b) of this section prior to April 30, 1996. Thereafter, the
sponsors of all new projects shall be registered in accordance with
part 804, subpart A, of this chapter and, prior to operation, apply to
the commission in order to receive the 50 percent credit.
(2) The sponsors of agricultural consumptive use projects consuming
a consecutive 30 day average in excess of 20,000 gpd but no more than
100,000 gpd, may be generally approved by the commission. In such
cases, the commission staff shall summarily issue a certificate of
approval to the project sponsor without formal review, docketing and
action by the commission. At least 10 days prior to issuance, the
commission shall distribute via its regular meeting notice mailing
list, a notice of general approvals it intends to issue. When such
general approval is given, the project shall be exempt from any and all
commission application or monitoring fees and the sponsor's only method
of compliance shall be a monetary payment to the commission as provided
in paragraph (b) (1) of this section.
(i) Certificate of pre-compact use. (1)(i) The executive director,
by [90 days from the publication of this section as a final rule in the
Federal Register], shall issue by certified mail to the sponsors of all
previously approved consumptive use projects a ``notice of pre-compact
use'' specifying the amount of consumptive use, if any, constituting
the pre-compact consumptive use of the sponsor as of January 23, 1971.
The executive director shall publish a notice of this action in the
Federal Register.
(ii) Such preliminary notice of pre-compact use shall become a
final ``certificate of pre-compact use'' unless the sponsor, within 20
days after service of the notice, or any interested party, within 20
days after publication of the notice in the Federal Register, shall
file a request for hearing by the commission. At such hearing, the
water user or interested party may show cause why the proposed pre-
compact use shall not take effect.
(iii) The executive director will schedule a hearing before the
commission at the next convenient regular meeting of the commission,
but in no case more than two regular meetings past the date of the
hearing request. The hearing will be conducted in accordance with the
requirements set forth in part 805, subpart A, of this chapter.
(iv) A final certificate of pre-compact use will be issued either
upon expiration of the time to request a hearing, where there has been
no request, or in accordance with the determination of a hearing where
one is held.
(2) Any other sponsor of a consumptive use project may apply for a
certificate of pre-compact use as part of a regular project application
to the commission or otherwise; provided, however, that such
applications shall be filed with the commission no later than April 30,
1996. The consumptive use project of any sponsor not applying for a
certificate by that date will be presumed to have been initiated after
January 23, 1971.
(3) Each sponsor may submit proof satisfactory to the commission of
the factors constituting pre-compact use as defined in Sec. 803.3.
Whenever adequate records of pre-compact use for agricultural
irrigation purposes are not available to the commission, such pre-
compact use shall be measured by the maximum number of acres under
irrigation by the water user during any year prior to 1971, allowing
one acre-foot of surface water annually per acre irrigated.
(4) A certificate of pre-compact use is not transferable except
that:
(i) A certificate issued for an agricultural consumptive use may be
transferred to a subsequent owner or operator of the land on which the
use occurs, provided that the transferee continues to use the land for
the raising of food or forage crops, trees, flowers, shrubs, turf,
aquaculture or livestock, and provided that written notice of the
transfer is provided to the commission.
(ii) A certificate issued for any consumptive use may be
transferred in connection with a corporate reorganization within any of
the following categories, provide that written notice of the transfer
is given to the commission:
(A) Whenever property is transferred to a corporation by one or
more persons solely in exchange for stock or securities of the same
corporation, provided that immediately after the exchange the same
person or persons are in control of the transferee corporation, that
is, they own 80 percent or more of the voting stock and 80 percent or
more of all other stock of the corporation.
(B) Whenever the transfer is an incident of a statutory merger or
consolidation pursuant to the corporation laws of any state, the
District of Columbia or the United States.
(C) Whenever the transfer is included in a transfer by a corporate
holder of a certificate of entitlement of all or a part of its assets
to another corporation if immediately after the transfer the transferor
or one or more of its stock holders or any combination thereof, are in
control of the corporation to which the assets are transferred and such
transfer is in exchange solely for stocks or securities of the
transferee corporation as a party to a reorganization within the
meaning of section 354 or section 361 of the Internal Revenue Code (26
U.S.C. 354 or 361).
(D) Where such transfer is required merely as a result of a change
of the name, identify, form or place of organization of a corporate
holder of a certificate of pre-compact use.
(5) If the consumptive use for which a certificate has been issued
is documented for such a period of time and under such circumstances
that an abandonment of the use may reasonably be inferred, the
commission may rescind the certificate after notice and opportunity to
be heard have been given to the holder of the certificate.
Sec. 803.43 Standards for ground-water withdrawals.
(a) Requirement. (1) Any project sponsor proposing to withdraw from
a ground-water source in excess of an average of 100,000 gpd for any
consecutive thirty-day period or proposing to increase an existing
withdrawal to more than an average of 100,000 for any consecutive
thirty-day period shall apply for approval pursuant to subpart B of
this part. These withdrawals may be denied or may be limited by the
commission to the amount (quantity and rate) of ground water that is
needed to meet the reasonably foreseeable needs of the project sponsor
and that can be withdrawn from an aquifer or aquifer system without
causing adverse lowering of ground-water levels, rendering competing
supplies unreliable, causing water quality degradation that may be
injurious to any existing or potential ground or surface water use,
causing permanent loss of aquifer storage capacity, or having
substantial impact on low flow of perennial streams.
(2) Projects withdrawing more than an average of 100,000 gpd for
any consecutive thirty-day period prior to the effective date of this
section are exempt from the above approval requirements, provided that
the current withdrawal rate does not exceed the amount withdrawn before
the said effective date. The sponsor of any such exempted project that
proposes to increase the said average withdrawal in excess of 100,000
gpd above that which it was withdrawing prior to the said effective
date shall submit said proposal to the commission for review and
approval as provided herein.
(3) After obtaining approval for the withdrawal pursuant to this
paragraph, the sponsor shall also comply with metering, monitoring and
reporting requirements as set forth in this section..
(b) Withdrawal application. Information required by the commission
is specified in the commission's ground-water withdrawal application
and includes but is not limited to the results of a constant rate
pumping test. Review and approval by SRBC staff of the test procedures
to be used by the applicant are necessary before the test is started.
(c) Metering. Projects approved hereunder shall meter all approved
ground-water withdrawals. The meters shall be accurate to within 5
percent of the actual flow.
(d) Monitoring and reporting. (1) Monitoring and periodic reporting
of water levels, well production, and ground-water quality are required
of all approved ground-water withdrawals. The required information is
listed in Form SRBC #30 (Ground-water Withdrawal Reporting Form)\1\ and
includes but is not limited to the following:
---------------------------------------------------------------------------
\1\This form is available from SRBC, 1721 North Front Street,
Harrisburg, PA 17102-2391.
---------------------------------------------------------------------------
(i) Ground-water levels shall be measured weekly in all approved
production wells and reported to the commission annually. Additional
water level measurements may be required in one or more observation
wells as determined by the commission.
(ii) Production from approved ground-water sources shall be
recorded weekly and reported to the commission annually.
(iii) Samples of ground water for water quality analysis shall be
obtained and the results reported to the commission every three years.
The required chemical constituents to be included in the analysis are
listed in Form SRBC #30.
(2) The information in paragraph (d)(1) of this section may be
provided to the commission either on Form SRBC #30 or other similar
document containing all of the required information.
(e) Planning. If projections indicate that a project's ground-water
supply will be constrained in the future by either the quantity or
quality of available ground water, the commission may, in its
discretion, require the submission of a water resource development plan
prior to accepting any new withdrawal applications for the same or
related projects.
(f) Interference with existing withdrawals. If review of the
application or substantial data demonstrates that operation of a
proposed ground-water withdrawal will significantly affect or interfere
with an existing ground-water or surface water withdrawal, the project
may be denied or the project sponsor may be required to provide, at its
expense, an alternate water supply or other mitigating measures.
(g) Effective date. Notwithstanding the overall effective date for
other portions of this part set forth in Sec. 803.1(e), this section
shall apply to all ground-water withdrawals initiated on or after July
13, 1978.
Sec. 803.44 Standards for surface water withdrawals.
(a) Requirement. (1) Any project sponsor proposing to withdraw
either directly or indirectly (through another user) from a surface
source in excess of an average of 100,000 gpd for any consecutive
thirty-day period or proposing to increase an existing withdrawal to
more than an average of 100,000 gpd for any consecutive thirty-day
period shall obtain commission approval of the withdrawal. These
withdrawals may be denied or may be limited by the commission to the
amount (quantity and rate) of water that is needed to meet the
reasonably foreseeable needs of the project sponsor and that can be
withdrawn without causing adverse lowering of streamflow levels,
rendering competing supplies unreliable, causing water quality
degradation that may be injurious to any existing or potential water
use, adversely affecting fish, wildlife or other living resources or
their habitat, or having substantial impact on the low flow of
perennial streams.
(2) A project that proposes to increase the said average withdrawal
above that which was previously approved by the commission or in excess
of 100,000 gpd above that which it was withdrawing prior to the said
effective date, shall submit said proposal to the commission for review
and approval as provided herein.
(3) Any sponsor of a project subject to this section shall complete
a surface water withdrawal application. After obtaining approval
hereunder, the sponsor shall comply with metering, monitoring, and
conservation requirements as set forth.
(b) Withdrawal application. Information required by the commission
is specified in the commission's application for withdrawal from
surface water sources.
(c) Metering. Project sponsors shall meter all approved surface
withdrawals. The meters shall be accurate to within 5 percent of the
actual flow.
(d) Monitoring and reporting. Monitoring and periodic reporting of
all approved surface water withdrawals is required. The required
information includes but is not limited to the following:
(1) Daily records of withdrawals by source reported annually;
(2) Description of conservation activity; and
(3) Records of releases or flowby for instream protection reported
annually.
(e) Planning. If projections indicate that a project's surface
water supply will be constrained in the future by either the quantity
or quality of available surface water, the commission may, in its
discretion, require the submission of a water resource development plan
prior to accepting any new withdrawal applications for the same or
related projects.
(f) Interference with existing withdrawals. If review of the
application or substantial data demonstrates that operation of a
proposed surface water withdrawal will significantly affect or
interfere with an existing ground-water or surface water withdrawal,
the project may be denied or the project sponsor may be required to
provide, at its expense, an alternate water supply or other mitigating
measures.
(g) Effective date. This section shall be effective as provided in
Sec. 803.1(e), except for projects previously reviewed and approved by
the commission under the general authority of section 3.10 of the
compact. Commission authority shall continue over such previously
approved projects.
2. Parts 804 and 805 are added to read as follows:
PART 804--SPECIAL REGULATIONS AND STANDARDS
Subpart A--Water Withdrawal Registration
Sec.
804.1 Requirement.
804.2 Time limits.
804.3 Administrative agreements.
804.4 Effective date.
804.5 Definitions.
Subpart B--Water Conservation Requirements
804.20 Requirement.
804.21 Effective date.
804.22 Definitions.
Authority: Secs. 3.4(2) and (9), 3.8, 3.10 and 15.2, Pub. L. 91-
575, 84 Stat. 1509 et seq.
Subpart A--Water Withdrawal Registration
Sec. 804.1 Requirement.
In addition to any other requirements of commission regulations,
all persons withdrawing or diverting in excess of an average of 10,000
gpd for any consecutive thirty-day period, from surface or ground-water
sources, as defined in part 803 of this chapter, shall register the
amount of this withdrawal with the commission and provide such other
information as requested on forms prescribed by the commission. This
requirement applies to all present and future withdrawals or
diversions, irrespective of when such withdrawals or diversions were
initiated.
Sec. 804.2 Time limits.
Except as provided in Sec. 803.42(h) of this chapter regarding
existing agricultural consumptive users, all registration forms shall
be submitted within one year of [the effective date of this final rule]
or within six months of their initiation, whichever is later; provided,
however, that nothing in this section shall limit the responsibility of
an applicant to apply for and obtain an approval as may be required
under part 803 of this chapter. All registered withdrawals shall re-
register with the commission within five years of their initial
registration, and at five-year intervals thereafter, unless sooner
discontinued.
Sec. 804.3 Administrative agreements.
The commission may complete appropriate administrative agreements
or informal arrangements to carry out this registration requirement
through the offices of signatory agencies. Forms developed by the
commission shall apprise registrants of any such agreements or
arrangements and provide appropriate instructions to complete and
submit the form. Permits issued by a signatory party agency shall be
considered a registration with the commission if issued pursuant to an
agreement of understanding with the commission specifically providing
therefor.
Sec. 804.4 Effective date.
This subpart shall be effective on [effective date of final rule].
Sec. 804.5 Definitions.
Terms used in this subpart shall be defined as set forth in
Sec. 803.3 of this chapter..
Subpart B--Water Conservation Requirements
Sec. 804.20 Requirement.
Any project sponsor proposing to withdraw water either directly or
indirectly (through another user) from surface or ground-water sources
or both shall comply with the following requirements:
(a) Public water supply utilities. As circumstances warrant, the
utility shall:
(1) Reduce distribution system losses to a level not exceeding 20
percent of the gross withdrawal.
(2) Install meters for all users.
(3) Establish a program of water conservation that will:
(i) Require installation of water conservation devices, as
applicable, by all classes of users;
(ii) Prepare and distribute literature to customers describing
available water conservation techniques;
(iii) Implement a water pricing structure which encourages
conservation; and
(iv) Encourage water reuse.
(b) Industrial water users. Industrial users shall:
(1) Designate a company representative to manage plant water use.
(2) Install meters or other suitable devices or utilize acceptable
flow measuring methods for accurate determination of water use by
various parts of the company operation.
(3) Install flow control devices which match the needs of the
equipment being used for production.
(4) Evaluate and utilize applicable recirculation and reuse
practices.
(c) Agricultural and other irrigation. Water users for irrigation
purposes shall utilize irrigation systems properly designed for the
user's respective soil characteristics, topography and vegetation.
Sec. 804.21 Effective date.
Notwithstanding the effective date for other portions of this part,
this subpart shall apply to all surface and ground-water withdrawals
initiated on or after January 11, 1979.
Sec. 804.22 Definitions.
Terms used in this subpart shall be defined as set forth in
Sec. 803.3 of this chapter.
PART 805--HEARINGS/ENFORCEMENT ACTIONS
Subpart A--Conduct of Hearing
Sec.
805.1 Public hearings
805.2 Adjudicatory Hearing.
805.3 Consolidation of hearing.
805.4 Joint hearings.
805.5 Transcript.
805.6 Continuance.
805.7 Effective date.
805.8 Definitions.
Subpart B--Enforcement Actions and Settlements
805.20 Scope of subpart.
805.21 Notice to possible violators.
805.22 The record for decision-making.
805.23 Adjudicatory hearings/alleged violations.
805.24 Assessment of a penalty/abatement or remedial action.
805.25 Factors to be applied in fixing penalty amount.
805.26 Enforcement of penalties/abatement or remedial orders.
805.27 Settlement by agreement.
805.28 Effective date.
805.29 Definitions.
Authority: Secs. 3.4(9), 3.5(5), 3.10, 15.2 and 15.17, Pub. L.
91-575, 84 Stat. 1509 et seq.
Subpart A--Conduct of Hearing
Sec. 805.1 Public hearings.
(a) A public hearing shall be conducted in the following instances:
(1) Addition of projects or adoption of amendments to the
comprehensive plan.
(2) Rulemaking.
(3) Approval of projects.
(4) Hearing requested by a signatory party.
(5) When in the opinion of the commission, a hearing is necessary
to give adequate consideration to issues relating to public safety,
protection of the environment, or other important societal factors.
(6) At all other times required by the compact or commission
regulations.
(b) Notice of public hearing. At least 20 days before any public
hearing required by the compact, notices stating the date, time, place
and purpose of the hearing including issues of interest to the
commission shall be published at least once in a newspaper or
newspapers of general circulation in the area affected. Occasions when
public hearings are required by the compact include, but are not
limited to, amendments to the comprehensive plan, drought emergency
declarations, and review and approval of diversions. In all other
cases, at least 10 days prior to the hearing, notice shall be posted at
the office of the commission, mailed by first class mail to the parties
who, to the commission's knowledge, will participate in the hearing,
and mailed by first class mail to persons, organizations, news media
and governmental entities who have made requests to the commission for
notices of hearings or of a particular hearing. In the case of hearings
held in connection with rulemaking, notices need only be forwarded to
the directors of the New York Register, the Pennsylvania Bulletin, the
Maryland Register, and the Federal Register, and it is sufficient that
this notice appear only in the Federal Register at least 20 days prior
to the hearing and in each individual state publication at least 10
days prior to any hearing scheduled in that state.
(c) Participants to a public hearing. (1) Hearings shall be open to
the public. Participants to a public hearing shall be the project
sponsor and the commission staff. Participants may also be any person
or governmental entity wishing to appear at the hearing and make an
oral or written statement. Statements may favor or oppose the project/
proposal or may simply express a position without specifically favoring
or opposing the project/proposal. Statements shall be made a part of
the record of the hearing, and written statements may be received up to
and including the last day on which the hearing is held, or within a
reasonable time thereafter as may be specified by the presiding
officer, which time shall be not less than ten days nor more than 30
days, except that a longer time may be specified if requested by a
participant.
(2) Participants (except the project sponsor and the commission
staff) are encouraged to file with the commission at its headquarters
written notice of their intention to appear at the hearing. The notice
should be filed at least three days prior to the opening of the
hearing.
(d) Representative capacity. Participants wishing to be heard at a
public hearing may appear in person or be represented by an attorney or
other representative. A governmental entity may be represented by one
of its officers, employees or by a designee of the governmental entity.
Any person intending to appear before the commission in a
representative capacity on behalf of a participant shall give the
commission written notice of the nature and extent of his/her
authorization to represent the person or governmental entity on whose
behalf he/she intends to appear.
(e) Description of project. When notice of a public hearing is
issued, there shall be available for inspection at the commission
offices such plans, summaries, maps, statements, orders or other
supporting documents which explain, detail, amplify, or otherwise
describe the project the commission is considering. Instructions on
where and how the documents may be obtained will be included in the
notice.
(f) Presiding officer. A public hearing shall be conducted by the
commission, the executive director, or any member or designee of the
commission. The presiding officer shall have full authority to control
the conduct of the hearing and make a record of the same.
Sec. 805.2 Adjudicatory hearing.
(a) Generally. The commission, upon application by any interested
party or upon its own motion, may determine that, due to outstanding
issues of fact, an adjudicatory hearing shall be conducted. If, for any
reason, the commission determines that there are not sufficient issues
of fact to schedule an adjudicatory hearing, it may still require
briefs or oral argument on any issues of law.
(b) Hearing procedure. (1) The presiding officer shall have the
power to rule upon offers of proof and the admissibility of evidence,
to regulate the course of the hearings, to hold conferences for the
settlement or simplification of issues, to determine the proper parties
to the hearing, to determine the scope of any discovery procedures, and
to delineate the issues to be adjudicated.
(2) The presiding officer shall cause each witness to be sworn or
to make affirmation.
(3) Any party to a hearing shall have the right to present evidence
and to examine and cross-examine witnesses.
(4) When necessary, in order to prevent undue prolongation of the
hearing, the presiding officer may limit the number of times any
witness may testify, the repetitious examination or cross-examination
of witnesses, or the extent of corroborative or cumulative testimony.
(5) The presiding officer shall exclude irrelevant, immaterial or
unduly repetitious evidence, but the parties shall not be bound by
technical rules of evidence, and all relevant evidence of reasonably
probative value may be received.
(6) Any party may appear and be heard in person or be represented
by an attorney at law.
(7) Briefs and oral argument may be required by the presiding
officer and shall be permitted upon request made prior to the close of
the hearing by any party. They shall be part of the record unless
otherwise ordered by the presiding officer.
(c) Staff and other expert testimony. The executive director shall
arrange for the presentation of testimony by the commission's technical
staff and other experts, as he/she may deem necessary or desirable, to
incorporate in the record or support the administrative action,
determination or decision which is the subject of the hearing.
(d) Written testimony. If the direct testimony of an expert witness
is expected to be lengthy or of a complex, technical nature, the
presiding officer may order that such direct testimony be submitted to
the commission in sworn, written form. Copies of said testimony shall
be served upon all parties appearing at the hearing at least ten days
prior to said hearing. Such written testimony, however, shall not be
admitted whenever the witness is not present and available for cross-
examination at the hearing unless all parties have waived the right of
cross-examination.
(e) Assessment of costs. (1) Whenever an adjudicatory hearing is
required, the costs thereof, as herein defined, shall be assessed by
the presiding officer to the project sponsor or such other party as the
hearing officer deems equitable. For the purposes of this section,
costs include all incremental costs incurred by the commission,
including, but not limited to, hearing examiner and expert consultants
reasonably necessary in the matter, stenographic record, rental of the
hall and other related expenses.
(2) Upon the scheduling of a matter for adjudicatory hearing, the
commission secretary shall furnish to the applicant a reasonable
estimate of the costs to be incurred under this section. The applicant
may be required to furnish security for such costs either by cash
deposit or by a surety bond of a corporate surety authorized to do
business in a signatory state.
(f) Findings and report. The presiding officer shall prepare a
report of his/her findings and recommendations. The report shall be
served by personal service or certified mail (return receipt requested)
upon each party to the hearing or its counsel unless all parties have
waived service of the report. Any party may file objections to the
report within 20 days after the service upon the party of a copy of the
report. A brief shall be filed together with objections and briefs
shall be promptly submitted to the commission. The commission may
require or permit oral argument upon such submission prior to its
decision.
(g) Action by the commission. The commission will act upon the
findings and recommendations of the presiding officer pursuant to law.
The determination of the commission will be in writing and shall be
filed together with any transcript of the hearing, report of the
hearing officer, objections thereto, and all plans, maps, exhibits and
other papers, records or documents relating to the hearing.
Sec. 805.3 Consolidation of hearing.
The commission may order any two or more public hearings involving
a common or related question of law or fact to be consolidated for
hearing on any or all the matters at issue in such hearings.
Sec. 805.4 Joint hearings.
The commission may conduct public hearings in concert with any
other agency of a signatory party.
Sec. 805.5 Transcript.
A verbatim transcript of the adjudicatory hearings shall be kept by
the commission. Other public hearings may be electronically recorded
and a transcript made only if deemed necessary by the executive
director or general counsel. A certified copy of the transcript and
exhibits shall be available for review during business hours at the
commission's headquarters to anyone wishing to examine them. Persons
wishing to obtain a copy of the transcript of any hearing shall make
arrangements to obtain it directly from the recording stenographer at
their expense.
Sec. 805.6 Continuance.
The sponsor and all other persons wishing to be heard should be
prepared to proceed on the date of the hearing. Applications for
continuances will not be granted, except when good cause is shown.
Sec. 805.7 Effective date.
This subpart shall be effective on [effective date of final rule].
Sec. 805.8 Definitions.
Terms used in this subpart shall be defined as set forth in
Sec. 803.3 of this chapter.
Subpart B--Enforcement Actions and Settlements
Sec. 805.20 Scope of subpart.
This subpart shall be applicable where the commission has
information indicating that a person or governmental entity (hereafter
referred to as alleged violator) has violated or attempted to violate
any provision of the compact or any of the commission's rules,
regulations or orders.
Sec. 805.21 Notice to possible violators.
Upon direction of the commission, the executive director shall, and
in all other instances, the executive director may require an alleged
violator to show cause before the commission why a penalty should not
be assessed in accordance with the provisions of this chapter and
section 15.17 of the compact. The notice to the alleged violator shall:
(a) Set forth the date on which the alleged violator shall respond;
(b) Set forth any information to be submitted or produced by the
alleged violator; and
(c) Specify the violation that is alleged to have occurred.
Sec. 805.22 The record for decision-making.
(a) Written submission. In addition to the information required by
the commission, any alleged violator shall be entitled to submit in
writing any other information that it desires to make available to the
commission before it shall act. The executive director may require
documents to be certified or otherwise authenticated and statements to
be verified. The commission may also receive written submissions from
any other persons as to whether a violation has occurred and the
adverse consequences resulting from a violation of the compact or the
commission's rules, regulations and orders.
(b) Presentation to the commission. On the date set in the notice,
the alleged violator shall have the opportunity to supplement its
written presentation before the commission by any oral statement it
wishes to present and shall be prepared to respond to any questions
from the commission or its staff or to the statements submitted by
persons affected by the alleged violation.
Sec. 805.23 Adjudicatory hearings/alleged violations.
(a) An adjudicatory hearing (which may be in lieu of or in addition
to proceedings pursuant to Secs. 805.21 and 805.22) shall not be
scheduled unless the executive director or the commission determines
that a hearing is required to have an adequate record for the
commission, or the commission directs that such a hearing be held.
(b) If an adjudicatory hearing is scheduled, the alleged violator
shall be given at least 14 days written notice of the hearing date
unless waived by consent. Notice of such a hearing may be given to the
general public and the press in the manner provided in Sec. 805.1(b),
but may be waived by the executive director.
(c) Except to the extent inconsistent with the provisions of this
subpart, adjudicatory hearings shall be conducted in accordance with
the provisions of Secs. 805.2 through 805.6.
Sec. 805.24 Assessment of a penalty/abatement and remedial action.
The executive director may recommend to the commission the amount
of the penalty to be imposed or the abatement and remedial actions to
be required. Such a recommendation shall be in writing and shall set
forth the basis for the penalty amount proposed. Based upon the record
submitted to the commission, the commission shall decide whether a
violation has occurred that justifies the imposition of a penalty
pursuant to section 15.17 of the compact or the requirement of
abatement or remedial action. If it is found that such a violation has
occurred, the commission shall determine the amount of the penalty to
be paid and the nature of the abatement or remedial action to be
undertaken.
Sec. 805.25 Factors to be applied in fixing penalty amount.
(a) Consideration shall be given to the following factors in
deciding the amount of any penalty or any settlement:
(1) Previous violation, if any, of the compact, commission
regulations or orders;
(2) The intent of the alleged violator;
(3) The extent to which the violation caused adverse environmental
consequences;
(4) The costs incurred by the commission or any signatory party
relating to the failure to comply with the compact, commission
regulations or orders;
(5) The extent to which the violator has cooperated with the
commission in correcting the violation and remediating any adverse
consequences or harm that has resulted therefrom;
(6) The extent to which the failure to comply with the commission's
compact and regulations was economically beneficial to the violator;
and
(7) The length of time over which the violation occurred and the
amount of water used during that time period.
(b) The commission retains the right to waive any penalty or reduce
the amount of the penalty should it determine that, after consideration
of the factors in paragraph (a) of this section, extenuating
circumstances justify such action.
Sec. 805.26 Enforcement of penalties/abatement or remedial orders.
Any penalty imposed or abatement or remedial action ordered by the
commission shall be paid or completed within such time period as shall
be fixed by the commission. The executive director and commission
counsel are authorized to take such action as may be necessary to
assure enforcement of this Subpart. If a proceeding before a court
becomes necessary, the action of the commission in determining a
penalty amount shall constitute the penalty amount recommended by the
commission to be fixed by the court pursuant to section 15.17 of the
compact.
Sec. 805.27 Settlement by agreement.
An alleged violator may request settlement of an enforcement
proceeding by agreement. If the executive director determines that
settlement by agreement is in the best interest of the commission, he/
she may submit to the commission a proposed settlement agreement. No
settlement will be considered by the commission unless the alleged
violator has indicated in writing to the commission acceptance of the
terms of the agreement and the intention to comply with all
requirements of the settlement agreement including payment of any
settlement amount or completion of any abatement or remedial action
within the time period provided. If the commission determines not to
approve a settlement agreement, the commission may proceed with an
enforcement action in accordance with this subpart.
Sec. 805.28 Effective date.
This subpart shall be effective on [effective date of final rule].
Sec. 805.29 Definitions.
Terms used in this subpart shall be defined as set forth in
Sec. 803.3 of this chapter.
[FR Doc. 94-13831 Filed 6-7-94; 8:45 am]
BILLING CODE 7040-01-P
