[Federal Register Volume 60, Number 115 (Thursday, June 15, 1995)]
[Rules and Regulations]
[Pages 31391-31404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14675]
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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: Final rule.
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SUMMARY: This action finalizes adoption of a reorganized and revised
set of regulations and procedures for review of projects. These
regulations implement the commission's general project review authority
set forth in Section 3.10 of the Susquehanna River Basin Compact and
its authority under other portions of the compact to set standards for
the operation of projects and to enforce its regulations. Other
regulations cover registration of water withdrawals and water
conservation.
EFFECTIVE DATE: May 11, 1995.
ADDRESSES: 1721 N. Front Street, Harrisburg, Pa. 17102-2391.
FOR FURTHER INFORMATION CONTACT: Richard A. Cairo or John D. Graham,
717-238-0422.
SUPPLEMENTARY INFORMATION:
History
These regulations were first proposed on May 12, 1994 and appeared
in the Federal Register on June 8, 1994 at p. 29563. They replace the
commission's existing project review regulations found in Part 803 of
the Code of Federal Regulations. Their purpose is to improve the
overall precision and clarity of the regulations; to reorganize the
regulations into an integrated format that is more readily understood
by the regulated community; and to address subject matter not addressed
or inadequately addressed in the existing regulations.
A series of eight public hearings were held throughout the river
basin during the summer of 1994. The hearings produced a large number
of comments, most of which were directed to the revised consumptive use
regulation. Agriculture and public water suppliers provided most of
these comments. After considering these comments and making a number of
changes in the originally proposed regulation, the commission held a
final hearing on March 9, 1995. Additional changes were made in
response to the comments received at this hearing. A copy of a document
showing all of these changes may be obtained upon request to the
commission at the above address or phone.
Due to the many comments and questions raised on the consumptive
use portion of the regulations, and because of the complexity and
potential regulatory impacts of that particular regulation, the
Commission determined that further consultations and discussions with
the regulated community will be needed before final action. At the same
time, the Commission feels that the remaining portion of the
regulations will greatly improve the Commission's regulations and
procedures for review of projects and should be adopted as soon as
possible. Therefore, the Commission is proceeding with final rulemaking
on these regulations, except for the proposed revisions to the
regulation on the consumptive use of water which are deferred. The
current consumptive use regulation found at 18 CFR 803.61 is
substantially retained and renumbered as Sec. 803.42. The Commission
will continue the consultation process with the regulated community in
an effort to develop a future strategy for the management of
agricultural and public water supply uses. The current suspension of
the consumptive use regulation with respect to agricultural consumptive
uses under Commission Resolution 94-05 also remains in effect.
The comments relating to the non-consumptive use portion of the
regulations are summarized below and responses provided.
Comments/Responses
1. Public water suppliers do not have the legal authority to
enforce water conservation requirements.
Response: The water conservation standards which are set forth in
the omnibus package have been in effect since 1979 without burdening
public water suppliers on the issue of enforcement of conservation
measures. The regulation says that such measures shall be implemented
``as circumstances warrant.'' We see no real difficulty for water
suppliers to distribute literature to customers describing water
conservation techniques and implementing a water pricing structure that
encourages conservation. As for requiring installation of conservation
devices, at least this could be implemented as a requirement for
hookups to the system if not directly mandated.
2. The duration of approvals should be the same as that of
accompanying permits issued by the state. If no state permit duration
is specified, the SRBC approval should be perpetual. Making the
approval duration retroactive to projects already approved by SRBC is
unfair and perhaps an unconstitutional taking of a vested right.
Twenty-five years may not enough time to amortize investments some in
big, complex plants where large sums of money were invested.
Response: The proposed regulation does tie permit duration to any
accompanying permit issued by a signatory party. We feel that 25 years
is a reasonable duration to otherwise give to a project sponsor so that
the investment he has made in the project can be sufficiently
amortized. To cover those situations where, for some good reason, 25
years is not appropriate, we propose to add a sentence to
Sec. 803.30(a) stating, ``The Commission, upon its own motion or that
of a project sponsor, may modify this duration in consideration of such
factors as the time needed to amortize a project investment, the time
needed to secure project financing, the potential risks of interference
with an existing project, and other equitable factors.'' To address the
concern over the retroactive application of the 25 year duration to
projects already approved by the Commission, we propose to now add five
years to this permit duration from the time of the Commission's initial
approval. This will help to mitigate the effects of the retroactive
application of the permit duration and stagger the time periods when
these previously approved projects come up for renewal.
3. Three years is not enough time for a project sponsor to
implement an approved project. This should be extended to four years.
Response: The proposed regulation (Sec. 803.3(b)) already allows
the extension or renewal of an approval upon the request of the
applicant. The Commission is not likely to refuse any reasonable
request for an extension.
4. Hydroelectric projects should be specifically exempted from
Sec. 803.44, [[Page 31392]] and electric generating plants in general
should be exempted from Sec. 804.20. Such plants do not properly fit
into the category of projects covered by these sections.
Response: In most cases, run of river hydroelectric projects, by
their very process of passing water through, will not be considered a
withdrawal of water. But what if there is a scenario wherein a
hydroelectric facility is somehow conveying water that would normally
pass directly into the tail race to supply another water use? The
commission needs to be able to deal with such an eventuality.
We therefore propose to add a provision exempting hydroelectric
projects from Sec. 803.44 except to the extent that such projects
constitute a withdrawal as defined in Sec. 803.3. Hydroelectric
sponsors should keep in mind the fact that, while hydro projects will
generally be exempt under Sec. 803.44, they may still be subject to
commission approval under the general project review requirements of
Section 3.10 of the Compact and these regulations.
With respect to Sec. 804.20 on water conservation standards,
electric generating (fossil-nuclear) facilities are basically
industrial type activities. The current proposal does allow sufficient
flexibility for the calculations in lieu of metering if indeed metering
is impractical for an electric generating station. We recognize that
the utilities have undertaken practices such as recirculation which
have contributed to water conservation efforts. The commission is
willing to work with the utilities to identify other conservation
techniques that would be considered unique to utility operations.
5. Under Secs. 803.43 & 803.44, the commission should not require
metering for water use by electric generating facilities and should
require only monthly reporting.
Response: We agree that more flexibility is needed on surface
withdrawals, so we would propose to add the words ``or other suitable
methods of measurement'' to Sec. 803.44 (c). We also agree to allow the
commission to designate, on an ad hoc basis, whether daily, weekly, or
monthly records shall be kept. (Sec. 803.44 (d).
With respect to Sec. 803.43, the commission has the ability to
waive any requirements of the regulations so long as the purposes of
the regulations are not violated. If there are good reasons for not
doing the normal metering or for having only monthly data reported, the
commission will listen and is not likely to refuse any reasonable
request. Meanwhile, the commission generally feels that some interval
more frequent than one month is desirable for ground water management.
6. The regulations should not be applied on a retroactive basis.
This may even be illegal and is unfair to the owners of existing
facilities.
Response: The consumptive use regulation has been retroactive since
1976. The only new retroactive application in proposed revisions to
Part 803 is the approval durations. However, we are not proposing to
revise it at this time. The ground water and conservation regulation
effective dates, which were previously established, are simply
preserved. The surface water regulation is made only prospectively
effective. There is nothing inherently illegal with a retroactive
effective date so long as proper safeguards are included.
7. In Section 803.3, a better definition of trigger flow is needed
to provide clarification of the intent and purpose of trigger flow,
relative to what becomes triggered.
Response: The definition of trigger flow relates to Section 803.42
and has been removed for the present time.
8. SRBC should not place the onus of responsibility for notifying
the public of an application on the applicant. The regulation calling
for notification of municipalities needs clarified. It sounds like an
applicant must notify every municipality in the county.
Response: Agree that the wording on municipal notification needs
revised to make clear that SRBC is not requiring that every
municipality in the county be notified, only those in which the project
is situated. As for notification responsibilities, agree that the
portion of the regulation requiring project sponsor to notify other
interested parties known to the project sponsor and SRBC is a vague
requirement and we would agree to delete it.
9. In Subpart D--Standards for Review and Approval of Projects, the
factors for disapproval of a project by the SRBC are too broad and
allow too much discretion on the part of the Commission. Approval/
disapproval should be based on evidentiary standards.
Response: The standards for review and approval of projects set
forth in Subpart D come directly from the Susquehanna River Basin
Compact, Section 3.10.
10. Water conservation standards need to be strengthened. For
example, the type of water conservation devices mentioned in
Sec. 804.20 could be specified.
Response: We agree that the water conservation requirement could be
made more specific. As an interim measure, we will retain the existing
language and develop more specific criteria for future consideration.
11. Ten days notice in a state bulletin, as required in Sec. 805.1
is not sufficient time before a public hearing regarding rulemaking.
Response: The notices in state bulletins will not be the only means
of publishing such hearings. There will be a 20-day notice in the
Federal Register, a publication that is distributed generally
throughout all three signatory states. Such hearings will also be
announced in various Commission news releases, the Guardian newsletter
and the meeting minutes. The news releases alone receive widespread
dissemination throughout the basin to media and other interested
parties who have expressed an interest in Commission activities. Staff
has found that, unlike the Federal Register, the state bulletins and
registers appear only weekly and are slower in publishing hearing
notices. The lead times for publishing in the state bulletins 20 days
in advance of hearings can be difficult to meet; hence, the 10-day
requirement for state registers and bulletins.
12. The project review procedures set forth in Part 803 are too
closely tied to the project review authority under Section 3.10 of the
compact. There needs to be a clearer statement that this part is also
intended to implement the Commission's authority under Section 3.4 of
the compact to set standards for the operation of projects and
facilities.
Response: Staff agrees and is inserting language to make it clear
that Part 803 also covers the setting of standards under Section 3.4 of
the compact and that neither Section 3.10 of the compact nor anything
else in the proposed regulations should be construed as a limitation on
the exercise of Section 3.4 powers.
13. The Commission's authority to set standards for the operation
of projects under Sec. 3.4 (2) of the Compact does not give the
commission authority to ``approve'' such projects unless they also fall
into the category of projects listed in Sec. 3.10--Review and Approval.
Response: We disagree. Both sections 3.4 (9) and 15.2 provide
authority to the commission to make rules and regulations to implement,
effectuate and enforce the compact. If an agency sets standards for the
operation of projects, it may adopt procedures whereby it can review
the project and confirm that the project sponsor has complied with the
standards set for the project. We would also point to Sec. 3.10 (2)
which states that ``(a)pproval of the commission shall be
[[Page 31393]] required for, but not limited to, the following * * *''
14. There are no specific provisions in the proposed rules
pertaining to wetlands.
Response: While there are no specific references to wetlands in the
proposed regulations, Sec. 803.41--General Standards for Review of
Projects, stipulates that: (a) A project shall not be detrimental to
the proper conservation, development, management or control of the
water resources of the basin; and (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. The comprehensive plan does
call for the avoidance of dredging and other human alterations of
wetlands. All applicants must also obtain applicable federal and state
approvals, in addition to SRBC approvals. Thus, the Commission is
adequately equipped to deal with threats to wetlands within the project
review process.
15. In proposed Sec. 803.5, projects which may require review and
approval, there are no objective standards or methodologies to
determine whether a project falls into one of the categories that
``may'' need approval and thus a request for determination. An example
is the reference to ``projects that have a significant effect upon the
comprehensive plan.'' Such specific standards might allow an applicant
to by-pass the ``request for determination'' procedure outlined in
Sec. 803.22 and apply directly to the Commission for approval.
Response: The compact itself uses this language and does not
attempt to define it, leaving it to the discretion and judgment of the
Commission. As long as the Commission does not act arbitrarily or abuse
its discretion, it seems appropriate for the Commission to make this
judgment on a case-by-case basis. Hard and fast definitions of what
constitutes a significant effect on the comprehensive plan would
detract from the flexibility and discretion accorded the Commission by
the compact.
16. Under Sec. 803.22, a project sponsor cannot rely on the
Executive Director's determination on whether a project requires
commission approval.
Response: The commission feels that there ought to be some method
of appeal of the Director's determination to the full commission. This
is not unlike the appeal that is always available to the town council
or zoning hearing board on a decision made by the local zoning officer.
This proposed procedure is patterned after a similar and very
successful regulation of the Delaware River Basin Commission.
17. The form of certification of the giving of notice of an
application under Sec. 803.25 is not clear. The Commission should
provide the form of certification.
Response: Agreed. Wording is added providing that notice shall be
given on a form provided by the Commission.
18. Sec. 803.26(5) states that the staff will determine the
appropriate application fee. The regulations should state how and on
what basis the application fee will be determined.
Response: Agreed. Wording is added indicating that the fee will be
determined in accordance with SRBC's project review fee schedule, which
has been adopted under separate resolution.
19. Under Sec. 803.32--Reopening/Modifications, it is not prudent
to allow any ``interested party'' to reopen a project docket at any
time. Once a project docket is reopened by any ``interested party,'' it
may set an undesirable precedent. If any party can request a reopening,
it undermines the reliance that a project sponsor can place on an
approval granted by the Commission. Considerable resources may have
already been expended by the project sponsor in reliance on such an
approval.
Response: Since it is the Commission which ultimately decides
whether a reopening of a docket has merit, we are not alarmed at the
use of the term ``interested party.'' We feel that broad public
participation in the project review process is to be encouraged, not
discouraged by stringent limits placed on those who can and cannot come
before the Commission. The Commission is an administrative forum where
projects affecting the public interest are evaluated, not a judicial
forum where there is a specific controversy involving defined parties
who must have standing to participate. We have further concerns about
trying to differentiate between those persons who are ``interested
parties'' under Sec. 803.21(e) and those persons who would, under the
utilities' proposal, be ``affected parties.'' Nevertheless, we do
understand the need for a project sponsor to be able to rely on an
approval given by the Commission. We are therefore adding language to
Sec. 803.32 requiring an interested party to show by a preponderance of
the evidence that an impact or a threat to public health, safety and
welfare exists and giving the executive director the authority to
determine whether an interested party has made out a prime facie case
favoring reeopening of the docket.
20. The Commission should clarify whether a project subject to
renewed approval under Sec. 803.30(c) is to be considered a ``proposed
project'' for purposes of the approval standards set forth in subpart D
of Part 803.
Response: Agreed. Wording is added to Sec. 803.30(c) clarifying
this point.
21. In Sec. 805.2, it is unfair to assess all of the adjudicatory
hearing costs to the project sponsor.
Response: The regulation states that the hearing officer shall
assess these costs to the project sponsors or others, as deemed
equitable. The hearing officer will be able to weigh the equities and
then assess costs accordingly. Costs will not necessarily be wholly
assessed against a sponsor in each and every case. There is room for
the officer to use his/her discretion to be fair to all parties. This
regulation is based on procedures successfully implemented by the
Delaware River Basin Commission.
22. A joint permitting process with the signatory agencies should
be developed as part of or concurrent with this rulemaking process.
Response: Sec. 803.6 of the proposed regulation allows for such
cooperation with the signatory parties. Staff will attempt to work out
such cooperative arrangement once the rulemaking package is in place.
23. Definition of ``diversion'' should be broadened to include
transfers between subbasins.
Response: The definition of ``diversion'' comes from the compact.
The Commission cannot broaden its scope, though certainly the effects
of a trans-subbasin withdrawal can be considered as part of the project
review evaluation process.
24. The costs of an adjudicatory hearing should not be assessed
against a signatory party.
Response: This should be left to the discretion of the hearing
officer as he/she deems equitable.
25. Sec. 803.24(b)(4) should include the word ``estimated'' before
the words ``completion date'' and ``construction schedule.''
Response: Agreed.
26. Water is not owned by any single person. It may be used by
individuals, but it is a resource belonging to all the people of the
basin. Water must be managed comprehensively by the SRBC. All users
must contribute in some fashion to wise management of the basin's
waters.
Response: Agreed, though in managing the basin's waters, the
Commission understands the need to consider the special needs and
challenges facing various users. [[Page 31394]]
27. Some farmers, particularly those in New York State, expressed
opposition to water use registration as increasing their paper work
loads and setting them up for future regulation. It was suggested that
the commission either withdraw the registration regulation or apply it
only in the signatory states who desired such registration.
Response: The Commission believes that registration will give
farmers equitable standing with the SRBC and perhaps with the courts if
use conflicts develop with another water user. Registration will also
help the Commission do a better job of managing the resource. The State
of Maryland's experience with registering agricultural water uses has
been very positive and has won the support of Maryland farmers.
Pennsylvania farmers also support registration for this reason. Because
support for registration does not appear universal, however, the
commission is adding language to Sec. 804.1 making the requirement for
the registration of water withdrawals exceeding 10,000 gpd subject to
the consent of the affected signatory state.
28. With respect to Sec. 803.24 (b)(2)(vi) and Sec. 803.43, the
PF&B believes that the use of the word ``substantial'' before ``adverse
impact'' in each of these sections introduces potentially unintended
ambiguity to the regulations. No where is the term ``substantial''
defined.
Response: The use of the word ``substantial'' is intended to
prevent the application of these sections to the most deminimus
effects. The word ``substantial,'' though not defined, is used to
describe the level of evidence that must be present for an
administrative agency to justify a regulatory action. Under the
``substantial evidence'' criteria, only a relatively small amount of
evidence is needed to justify agency action. Thus, we do not believe
that the word ``substantial'' introduces ambiguity anymore than the
widespread use in thousands of statutes and judicial decisions of the
word ``reasonable.''
29. With respect to Sec. 803.44(d), new subsection should be added
which would require the immediate reporting of violations of release or
flow-by conditions along with documentation of the reasons for the
violations.
Response: The commission does not wish to suggest to such users
that it may be acceptable to violate the flow by requirements. If they
do so, there are sanctions available to deal with such violations.
30. The commission should permit an applicant to by pass a request
for determination under Sec. 803.22 when it is fairly certain that
approval will ultimately be required. The need for a project to submit
a ``request for determination'' and an application for approval is
duplicative.
Response: In fact, the Commission would not require that an
applicant submit a ``request for determination'' in all cases. If an
applicant's project falls into one of the categories listed in
Sec. 803.4 (Projects requiring review and approval), the applicant then
submits an application directly to the commission.
The ``request for determination'' proceeding is provided largely
for the benefit of potential applicants whose projects fall into the
category of projects listed in Sec. 803.5 (Projects which may require
review and approval). The ``request for determination'' procedure could
possibly remove the need for them to make a formal application.
The level of information to be provided to the Executive Director
in a request for determination will be far less than that required for
an application so that duplication should be minimal. Nevertheless, to
accommodate applicants who feel that their projects are likely to be
classified as requiring the commission's approval, the commission is
adding a clause allowing the Executive Director, at an applicant's
request, to waive the ``request for determination'' and proceed
directly to the filing of an application for approval.
31. The definition for ``withdrawal'' in Sec. 803.3 is inconsistent
with the definition of withdrawal in the Susquehanna River Basin
Compact.
Response: Agreed. The definition of ``withdrawal'' in the compact
should be substituted for the proposed definition of withdrawal.
32. A phrase should be added to Sec. 803.28, Application/monitoring
fees, indicating that a public hearing shall be held prior to the
imposition of such fees.
Response: Under Section 3.9 of the compact, such hearings are
already required.
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: June 9, 1995.
Paul O. Swartz,
Executive Director.
Accordingly, Chapter VIII of title 18 of the Code of Federal
Regulations is 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/Special Standards
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 special standards under Section 3.4 (2) of the compact
governing water withdrawals and the consumptive use of water. The
special standards established pursuant to Section 3.4 (2) shall be
applicable to all water withdrawals and [[Page 31395]] consumptive uses
in accordance with the terms of those standards, irrespective of
whether such withdrawals and uses are also subject to project review
under Section 3.10.
(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. This part, and
every other part of 18 CFR chapter VIII, shall also be incorporated
into and made a part of the comprehensive plan.
(d) If any portion of this part, or any other part of 18 CFR
chapter VIII, 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 May 11, 1995; provided, however, that nothing in this
paragraph shall be deemed to exempt:
(1) 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; or
(2) Any withdrawal or consumptive use which has been or could have
been subject to special standards adopted pursuant to Section 3.4 (2)
of the compact.
(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.
(g) Any forms or documents referenced in this part may be obtained
from the commission at 1721 N. Front Street, Harrisburg, PA 17102-2391.
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 water use. A water 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 storage as makeup for
a 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.
Construction. Clearing or excavation of the site or installation of
any portion of the project on the site.
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.
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.
Facility. Any real or personal property, within or without the
basin, and improvements thereof or thereon, and any and all rights of
way, water, water rights, plants, structures, machinery, and equipment
acquired, constructed, operated, or maintained for the beneficial use
of water resources or related land uses or otherwise including, without
limiting the generality of the foregoing, any and all things and
appurtenances necessary, useful, or convenient for the control,
collection, storage, withdrawal, diversion, release, treatment,
transmission, sale, or exchange of water; or for navigation thereon, or
the development and use of hydroelectric energy and power, and public
recreational facilities; of the propagation of fish and wildlife; or to
conserve and protect the water resources of the basin or any existing
or future water supply source, or to facilitate any other uses of any
of them. For purposes of this part and every other part contained in
this chapter, a facility shall be considered a project (see definition
of project in this section).
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 [[Page 31396]] (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.
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'' (gpd).
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 United States of America.
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, perennial stream, natural lake or
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.
Water(s). Surface and ground water(s) contained within the
Susquehanna River basin either before or after withdrawal.
Withdrawal. A taking or removal of water from any source within the
basin for use within the basin.
Sec. 803.4 Projects requiring review and approval.
(a) 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:
(1) Projects on or crossing the boundary between two signatory
states;
(2) Projects involving the diversion of water;
(3) 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;
(4) 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
(5) Projects which have been included by the commission in its
comprehensive plan.
(b) Sponsors of projects who feel that their projects are likely to
be classified as requiring the commission's approval may request that
the executive director waive the ``request for determination''
procedure and may thereafter proceed directly to the filing of an
application for approval.
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 procedures outlined in this part,
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. 803.7 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
[[Page 31397]] 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 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:
(A) Detailing the efforts that have been made to develop its own
in-basin sources of water; and
(B) Demonstrating that the proposed diversion will not have
substantial adverse effects on 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 of government to provide services or finances.
(iii) Status of application with other governmental regulatory
bodies.
(4) Project estimated completion date and estimated 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,
the municipality(ies) in which the project is situated, the county
planning agency of the county(ies) in which the project is situated,
and contiguous property owners 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. [[Page 31398]]
(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 on a form provided by 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 in accordance
with the commission's project review fee schedule 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 license or permit 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 under this part shall be 25
years. The commission, upon its own motion or that of a project
sponsor, may modify this duration in consideration of such factors as
the time needed to amortize a project investment, the time needed to
secure project financing, the potential risks of interference with an
existing project, and other equitable factors. Unless there is an
accompanying signatory license or permit regulating the same subject
matter and specifying a duration, the 25 year duration for projects
previously approved by the commission under this part shall commence
five years from the date on which such projects were initially
approved.
(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 six months
prior to the expiration of their previous approval. Such applications
for renewal shall be reviewed under the same procedures and standards
as for newly proposed projects.
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. Whenever
an application for reopening is filed by an interested party, the
burden shall be upon that interested party to show, by a preponderance
of the evidence, that a substantial adverse impact or a threat to the
public health, safety or welfare exists that warrants reopening of the
docket. Before such application may be submitted to the commission for
action, the executive director shall first determine that an interested
party has made out a prima faci case favoring the reopening of the
docket. The executive director shall inform the commission of any
negative finding in this regard so that the commission is afforded the
opportunity to over-rule his/her decision.
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/Special Standards
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, and to establish special standards applicable to
certain water withdrawals and consumptive uses irrespective of
[[Page 31399]] whether such withdrawals and consumptive uses are
subject to project review pursuant to Section 3.10 of the compact.
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. The
special standards established pursuant to Section 3.4 (2) of the
compact shall be applicable to all water withdrawals and consumptive
uses in accordance with the terms of those standards, irrespective of
whether such withdrawals and uses are also subject to project review
under Section 3.10 of the compact.
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) 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 Sec. 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
Sec. 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 Sec. 803.2, as
applicable.
(e) 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.
(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.
Sec. 803.43 Standards for ground-water withdrawals.
(a) Requirement. (1) With respect to projects coming into existence
on or after the effective date of this section, 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, proposing
to increase a withdrawal to more than an average of 100,000 for any
[[Page 31400]] consecutive thirty-day period or proposing to increase a
withdrawal above that amount which was previously approved by the
commission, 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 a
substantial adverse impact on low flow of perennial streams.
(2) With respect to projects withdrawing any quantity of water
prior to the effective date of this section, any project sponsor
proposing to increase the said withdrawal in excess of 100,000 gpd
above that which such project was withdrawing prior to the said
effective date, shall apply for approval pursuant to subpart B of this
part.
(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 under this section 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) and
includes but is not limited to the following:
(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) With respect to projects coming into existence
on or after the effective date of this section, any project sponsor
proposing to withdraw either directly or a public water supplier
proposing to withdraw indirectly (through another user) from a surface
source in excess of an average of 100,000 gpd for any consecutive
thirty-day period, proposing to increase a withdrawal to more than an
average of 100,000 gpd for any consecutive thirty-day period or
proposing to increase a withdrawal above that amount which was
previously approved by the commission, 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 a substantial adverse impact on
the low flow of perennial streams.
(2) With respect to projects withdrawing any quantity of water
prior to the effective date of this section, any project sponsor
proposing to increase the said withdrawal in excess of 100,000 gpd
above that which such project was withdrawing prior to the said
effective date, shall apply for approval pursuant to subpart B of this
part.
(3) Any sponsor of a project subject to this section shall complete
a surface water withdrawal application. After obtaining approval under
this section, the sponsor shall comply with metering, monitoring, and
conservation requirements as set forth in this section.
(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 or use other suitable
methods of measuring surface withdrawals approved under this section.
The meters shall be accurate to within 5 percent of the actual flow.
(d) Monitoring and reporting. Monitoring and periodic reporting of
surface water withdrawals approved under this section is required. The
required information includes but is not limited to the following:
(1) Daily, weekly, or monthly records of withdrawals by source, as
specified by the commission, and 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 [[Page 31401]] may be
required to provide, at its expense, an alternate water supply or other
mitigating measures.
(g) Effective date. This section shall be effective six months
after the effective date set forth 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.
(h) Hydroelectric projects. Hydroelectric projects, except to the
extent that such projects constitute a withdrawal, shall be exempt from
the requirements of this section; provided, however, that nothing in
this paragraph shall be construed as exempting hydroelectric projects
from review and approval under any other category of project requiring
review and approval as set forth in Secs. 803.4 and 803.5.
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,
and subject to the consent of the affected signatory state to this
requirement, 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.
Sec. 804.2 Time limits.
(a) Except for agricultural water use projects, all registration
forms shall be submitted within one year after May 11, 1995, 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.
(b) Sponsors of existing agricultural water use projects (i.e.
projects coming into existence prior to March 31, 1997) withdrawing or
diverting in excess of an average of 10,000 gpd for any consecutive 30-
day period from a surface or ground-water source shall register their
use no later than March 31, 1997. Thereafter, the sponsors of new
projects proposing to withdraw or divert in excess of 10,000 gpd for
any consecutive 30-day period from a surface or ground-water source
shall be registered prior to project initiation.
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 May 11, 1995 and shall apply to
all present and future withdrawals or diversions irrespective of when
such withdrawals or diversions were initiated.
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 whose project is subject to commission approval
under this part or part 803 of this chapter 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 suppliers. As circumstances warrant, the public
water supplier 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. [[Page 31402]]
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 except as otherwise provided by Section 14.1 of the
compact.
(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) To decide factual disputes.
(7) At all other times required by the compact or commission
regulations in this chapter.
(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, [[Page 31403]] 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 May 11, 1995.
Sec. 805.8 Definitions.
Terms used in this subpart shall be defined as set forth in 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 shall be given to
the general public and the press in the manner provided in
Sec. 805.1(b).
(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 or 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
[[Page 31404]] 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 May 11, 1995.
Sec. 805.29 Definitions.
Terms used in this subpart shall be defined as set forth in
Sec. 803.3 of this chapter.
[FR Doc. 95-14675 Filed 6-14-95; 8:45 am]
BILLING CODE 7040-01-P
