[41 Pa.B. 1173]
[Saturday, March 5, 2011]

[Continued from previous Web Page]

TABLE 7.3.1: APPLICATION FEES AND WATER CHARGES ASSOCIATED WITH NATURAL GAS EXPLORATION AND DEVELOPMENT PROJECTS IN THE DELAWARE BASIN

	Project Category	Fee Calculation Formula	Standard Fee
(a)	Water Withdrawal (Docket or protected area permit)—Industrial, Commercial, Private or Public	The higher of total project cost formula or actual review cost or the minimum fees for public and private projects respectively will apply.	The greater of 0.4 % of total project cost up to $10M, plus 0.12 % of total project cost over $10M, not to exceed $75,000, or actual review cost.(1) (2) or the minimum fee of $500 (public projects) and $1,000 (private projects).
(b)	Water Withdrawal (ABR)— Industrial, Commercial, Private or Public	Fixed fee	$5,000 (2)
(c)	Approval of Water Use at Well Pad (ABR) (where well pad approvals are deferred to State)	Fixed fee	$10,000 (2)
(d)	Individual Well Pad in the absence of NGDP   ABR   Docket	Fixed fee or actual review cost.	$20,000 (2)   $30,000 or actual cost of review (1) (2)
(e)	Natural Gas Development Plan (NGDP) (Docket)	Fixed fee or actual review cost.   up to 5,000 acres       over 5,000 acres	Fixed fee of $50,000 or actual review cost (1) plus the per well pad fee in item (f) or (g) below.   Fixed fee of $75,000 or actual review cost (1) plus the per well pad fee in item (f) or (g) below.
(f)	ABR for exploratory or low volume hydraulically fractured wells	Fixed fee	$3,000 per well pad.
(g)	Addition of Well Pad(s) in an Approved NGDP by ABR	Fixed fee per well pad	$15,000 per well pad.
(h)	Industrial, Commercial, Private or Public Wastewater Discharge Involving Treatment and/or Disposal of Natural Gas Wastewaters (Docket)	The higher of the fee based on total project cost formula or actual review cost or minimum fees for public and private projects respectively will apply.	The greater of 0.4 % of total project cost up to $10M, plus 0.12 % of total project cost over $10 M, not to exceed $75,000, or actual review costs(1)(2) or the minimum fee of $500 (public projects) and $1,000 (private projects).
(i)	Change in ownership of: a-g above	Fixed fee	$1,000
(j)	Change in name of project owner or sponsor of: a-g above	Fixed fee	$500
(k)	Renewal of Approval of:   a-g above	Fixed fee   Minimum fee, fixed fee or actual review cost as provided. Renewals involving no changes (e.g., increase in water allocation or addition of well pads or wells).	a & g—see a & g above (2)   b & c—$1,000 (2)   d—$5,000 or actual review cost. (1) (2)   e—$10,000 or actual review cost. (1)   f—$3,000 or actual review cost. (1)(2)
(l)	Natural Diversity Index Assessment	If performed by the Commission:   Fixed fee or actual review cost.	a—g-$15,000 or actual review cost. (1)
(m)	Modification of an approval by the Commission or the Executive Director not listed above	Fixed fee or actual review cost.	$5,000 or actual review cost. (1)
(n)	Consumptive Water Use Charge	Consumptive water use charge.	$0.08 per 1,000 gallons used ($80 per million gallons) (3)
(o)	Any project regulated by this Article 7 resulting in an out-of- basin water or wastewater diversion.		See note below. (2)
(p)	Annual Monitoring and Compliance fee	Fixed fee	$ 2,000 (4)

 ⁽¹⁾ See Section 7.3(m) (concerning alternative fee based on actual cost of review).

 ⁽²⁾ Twice the calculated fee calculated by the ''Standard Fee'' column will be charged for any project, except for applications filed under item (e) NGDP above resulting in an out of basin diversion of water or wastewater.

 ⁽³⁾ All water (surface, ground or wastewater other than flowback or production water) delivered, withdrawn or used at a well pad site is deemed to be consumptively used.

 ⁽⁴⁾ See Section 7.3 (m)(10).

 (m) Reporting Violations.

 (1) The project sponsor must report in writing to the Commission any violation of these rules, the requirements of its approval including but not limited to, docket, ABR, protected area permit, or approved operations or other plans, or any circumstances that may reasonably lead to a finding of violation, within 48-hours of the occurrence or upon the project sponsor becoming aware of the violation or circumstance. In addition, the project sponsor must notify the Commission by telephone immediately upon learning of any violation, occurrence or condition that may cause a significant harm to water resources. The project sponsor must also provide a written explanation of the causes of the violation, occurrence or condition for which written or telephone notice is required by this subpart 7.3(m)(1) within 30 days of the violation, occurrence or condition and must set forth the action(s) the project sponsor has taken to correct and address the consequences of the violation, occurrence or condition and protect against a future violation.

 (2) If the monitoring required herein, or any other data or information demonstrates that the operation of this project significantly affects or interferes with any designated uses of ground or surface water, or if the project sponsor receives a complaint regarding this project, the project sponsor must immediately notify the Executive Director of such condition or complaint and unless excused by the Executive Director, must investigate such condition or complaint. The project sponsor must direct phone call notifications of complaints involving water resources to the DRBC. Oral notification must always be followed up in writing directed to the Executive Director. In addition, the project sponsor must provide written notification to all potentially impacted users of wells or surface water users of the project sponsor's responsibilities under this condition. Any ground or surface water user which is substantially adversely affected, rendered dry or otherwise diminished as a result of the project sponsor's project withdrawal, must be repaired, replaced or otherwise mitigated at the expense of the project sponsor. A report of investigation and/or mitigation plan prepared by a qualified professional must be submitted to the Executive Director as soon as practicable or within the time frame directed by the Executive Director. The Executive Director will consult with the host state prior to making a final determination regarding the validity of such complaints, the scope or sufficiency of such investigations, and the extent of appropriate mitigation measures, if required.

 (n) Enforcement.

 (1) Suspension of Activities and Correction of Water Resources Impacts.

 (i) Authority. Upon a determination by the Executive Director that a practice, operation, or activity of a project sponsor violates applicable Commission regulations or approvals, or poses a threat to the water resources of the basin, the Executive Director, with the approval of the Chair of the Commission, may order any such practice, operation, or activity to cease or be corrected, mitigated and/or remediated immediately or according to a schedule detailed in the order. Such order will remain in effect until the earlier of the expiration date stated in the order or a determination by the Commission in accordance with Commission rules, unless the recipient of the order determines not to request a hearing or the Executive Director revokes or modifies the order.

 (ii) Notification and Appeal Process. Any order issued by the Executive Director under this section will state the practices, operations, or activities affected, a summary of the basis for the Executive Director's determination, and the project sponsor's right to object and appeal in accordance with Article 5 or Article 6 of the Rules of Practice and Procedure. Upon appeal, the Commission may continue, modify or vacate the order, and with notice to the project sponsor may also invoke its authority under Section 7.3(n)(2) to suspend, modify or terminate Commission approval. The authority granted the Executive Director to issue an order pursuant to this Section 7.3(n)(1) is in addition to and does not limit the authority of the Executive Director or Commission to invoke other remedies.

 (2) Suspension, Modification or Termination of Commission Approval.

 (i) Authority. The Executive Director or the Commission, pursuant to Sections 3.6(h) and 3.8 of the Compact, may suspend, modify or terminate an approval or any condition thereof, in the event of serious, continuing or repeated violations of Commission regulations or of the conditions of approval, or when in the judgment of the Executive Director or Commission, such action is necessary to protect the water resources of the basin or to effectuate the Comprehensive Plan.

 (ii) Notification and Appeal Process. The Executive Director or the Commission will issue in writing to the project sponsor holding the ABR, protected area permit or docket an order suspending, modifying or terminating an approval issued in accordance with this Article 7, setting forth the basis for the decision and advising the recipient of the right to appeal such decision under Article 5 or Article 6 of the Rules of Practice and Procedure. The order of suspension, modification or termination will not become effective until a final determination is issued following an administrative hearing by the Commission unless the project sponsor does not file an appeal within the time limits set forth in the Rules of Practice and Procedure or unless the Executive Director or Commission find that an earlier effective date of the order is necessary to prevent, mitigate or remediate an adverse effect on the water resources of the basin. The authority granted the Executive Director and Commission to issue an order pursuant to this Section 7.3(n)(2) is in addition to and does not limit the authority of the Executive Director or Commission to invoke other remedies.

 (iii) Reinstatement. The Commission may reinstate the suspended or terminated ABR, protected area permit, or docket upon a showing demonstrating to the satisfaction of the Commission that the violation or condition upon which the suspension or termination or modification is based is corrected so as to bring all natural gas development by the project sponsor into full compliance with this Article and that procedures have been implemented to prevent a recurrence of the violation or condition.

 (3) Penalties. Any person who violates or attempts to violate these regulations shall be subject to penalties as provided in Section 14.17 of the Compact.

Section 7.4. Water Sources for Uses Related to Natural Gas Well Development.

 Natural gas development project sponsors may only use water from Commission approved sources.

 (a) Types of water sources. The following types of water sources may be approved for uses related to natural gas well development:

 (1) Previously approved sources. Surface and groundwater withdrawals, discharges of treated wastewater and discharges of non-contact cooling water, in each instance operating in accordance with a previously issued and valid Commission approval.

 (2) New withdrawals. Withdrawals of surface water or groundwater within the Delaware River Basin that have not previously received Commission approval.

 (3) New withdrawals of treated wastewater and non-contact cooling water. The use of treated effluent or non-contact cooling waters that are approved after the effective date of these regulations may include or be amended to approve the use of such water for natural gas development projects.

 (4) Imported water. Water imported from sources outside the Delaware River Basin.

 (5) Mine drainage water (MDW) from within or imported to the Delaware River Basin.

 (6) Recovered flowback and production water. Recovered flowback or production water from natural gas development projects located within or imported to the Delaware River Basin.

 (b) Preliminary determinations.

 (1) Substantial effect. Due to advances in horizontal drilling and hydraulic fracturing technologies, thousands of natural gas development projects are expected to be proposed for the Delaware River Basin. Each will involve land disturbance for such appurtenances as roads, well pads, pipelines, impoundments, and compressor stations; and most will entail the withdrawal, diversion, importation into or exportation out of the basin of surface water, ground water, non-contact cooling water, mine drainage water, and/or treated wastewater. These uses may have a substantial effect, either individually or cumulatively, on the surface water and groundwater resources of the basin.

 (2) Rules of Practice and Procedure (RPP) thresholds not applicable. Natural gas well development within the Delaware River Basin will encompass thousands of drilling sites, many of them proximate to headwater streams in the sparsely populated upper portion of the Delaware Basin that comprises the drainage area of the Commission's Special Protection Waters. Estimates of the quantity of water needed to develop these wells and perform hydraulic fracturing range from 3 to 5 million gallons per well. Although some of the water used at a well can be recovered and reused at other wells, much of the water used at each well will come from the other sources identified in this Section 7.4. Because the water uses associated with natural gas development are almost entirely consumptive in nature, little if any of the water withdrawn or diverted for these purposes will be returned to streams and aquifers in the vicinity of the sources. Flows and assimilative capacities in aquifers and water bodies in the vicinity of the sources will be commensurately reduced. For this combination of reasons, the water uses associated with natural gas development are unlike those for the stationary industrial, commercial and domestic projects contemplated by the Commission's Rules of Practice and Procedure (RPP). The thresholds established by the RPP for the review of projects under Section 3.8 of the Delaware River Basin Compact do not adequately protect the water resources of the basin from the effects of natural gas development. Accordingly, these thresholds are not applicable to water withdrawals and diversions to be used in natural gas well development. Instead, sponsors of natural gas development projects within the Delaware River Basin must obtain Commission approval for all sources of water.

 (c) Conditions.

 (1) Water sources for natural gas projects. Based upon the preliminary determinations set forth in the preceding Section 7.4(b), no water may be used for natural gas well development activities within the Delaware River Basin except from sources that have been approved by the Commission for such uses in accordance with this Section 7.4.

 (2) Importations and exportation of water and wastewater for natural gas development. Importation and exportation of water and wastewater to support natural gas development projects are regulated in accordance with Article 2, Section 2.30 of the Water Code. Importation of water and/or wastewater and the exportation of water to support natural gas development projects require a docket and are not eligible for an ABR. Exportation of non-domestic wastewater from natural gas development projects are regulated in accordance with Section 7.6 and may be approved by means of an ABR.

 (3) Alternate review and approval process for sources previously approved by the Commission. Multiple approved water sources, including surface and groundwater withdrawals and discharges of treated wastewater and non-contact cooling water, currently operate in accordance with Commission approvals that have been designed to protect the basin's water resources. Because a full review by the Commission already occurred for these sources, this Section 7.4 among other things sets forth conditions under which bulk sales by the owner or operator of a withdrawal or discharge project previously approved by the Commission may be eligible for Approval by Rule (ABR) to supply water for natural gas projects. In addition, the use of recovered flowback and production water and new water sources located within the physical boundaries of an approved NGDP may also be approved by means of an ABR.

 (4) Normal review process. A withdrawal or diversion of water, treated wastewater, non-contact cooling water, recovered flowback and production water and mine drainage water for uses related to natural gas well development also may be approved through the Commission's normal process for the review and approval of projects in accordance with Section 3.8 of the Delaware River Basin Compact, involving an application, technical review, publication of a draft docket, public hearing, and Commission action at a public meeting.

 (d) Approval by Rule of previously approved sources to supply water for natural gas development.

 (1) Approved withdrawals. An existing ground or surface water withdrawal is eligible for ABR to provide water for uses related to natural gas development if no increase in the withdrawal is required and the project sponsor meets the conditions set forth below. If an increase in allocation is requested, the project is not eligible for an ABR and must file an application for a docket amendment using the normal review process (defined at Section 7.4(c)(4) above) must be used.

 (i) the withdrawal is operated in accordance with a valid docket approval or protected area permit issued by the Commission and if applicable, a valid permit issued by the state in which the withdrawal is located;

 (ii) the docket or protected area permit holder is in compliance with all terms of its Commission and state approvals;

 (iii) the natural gas well project(s) for which the water will be used are located within the Delaware River Basin;

 (iv) the project sponsor demonstrates to the satisfaction of the Executive Director that the allocation previously approved by the Commission and where applicable, the state, is adequate to meet the projected needs of the area served as defined in the Commission and state approvals and to supply the proposed natural gas related uses through the term of the contract of sale for such uses;

 (v) for a water source that consists entirely or in part of a groundwater withdrawal allocation, the docket or permit holder demonstrates that any increase in an individual well allocation (even though not increasing the total allocation) needed to accommodate the proposed sale will not adversely affect other wells or surface water flows.

 (vi) because no portion of the water used for natural gas well projects will be returned to a drinking water aquifer or surface water in the vicinity of the withdrawal point, the applicant must demonstrate that removal of one hundred percent of the water proposed to be purchased for uses related to natural gas development will not adversely affect streamflow in the vicinity of the withdrawal point or in the vicinity of the point of discharge of treated wastewater that is normally associated with the withdrawal; provided, however, that this requirement does not apply to a withdrawal for which a Commission-imposed pass-by requirement is already in effect;

 (vii) the bulk water sale agreement between the seller and the natural gas well—related user includes the following:

 (A) a condition providing that if at any time all or any incremental portion of the supplier's allocation is needed to meet demand associated with the uses for which the docket or protected area permit was approved, including uses or areas identified in the ''Area Served'' section of the docket or protected area permit (collectively, ''approved uses), such that at its approved allocation the docket or protected area permit holder cannot fully serve the approved uses and also meet its bulk sale target for natural gas-related uses, the quantity sold for natural gas-related uses must be reduced to the extent necessary to fully meet the demand associated with the approved uses;

 (B) a condition providing, ''Purchasers of water for uses related to natural gas well projects are advised that such projects may be commenced within the Delaware Basin only after the project sponsor has obtained, in addition to any permits required by the host state, the approval of the Delaware River Basin Commission for development and operation of a well pad site or sites.''

 (C) a condition providing, ''Water from sources within the Delaware River Basin may not be exported for use outside the Delaware River Basin without the express approval of the Delaware River Basin Commission.''

 (viii) Metering and recording of withdrawals and transfers. Water withdrawals must be metered and recorded by means of an automatic continuous recording device, or flow meter, and measured to within 5% of actual flow. Any withdrawal in excess of the daily allocation approved by the Commission must be reported to the Commission within 48 hours of the exceedance. Withdrawn water for natural gas development must be conveyed directly to water storage tanks before it is transferred to hauling vehicles or pipelines unless otherwise approved in writing by the Executive Director. Total withdrawals must be recorded on a daily basis. Likewise, the volume and destination of each transfer of water from the withdrawal site must be recorded by truck load or pipeline transmission and a daily total maintained. For a period of ten (10) years following the withdrawal, all water withdrawal and transfer records must be available for inspection at the withdrawal site. The project sponsor must institute a system for recording the date, amount, carrier, vehicle and destination of each tank-load of water sold (or an equivalent tracking mechanism for delivery by pipeline), and provides this information in a Commission-specified electronic format to the Commission at the request of the Executive Director.

 (ix) Reporting of withdrawals and transfers. The project sponsor will provide a quarterly report to the Executive Director that provides the monthly total of water that was provided for natural gas development projects and the destinations the water was sent to for the reporting quarter. The reporting format will be prescribed by the Executive Director.

 (x) Invasive species control plan. If determined by the Commission to be necessary, the project sponsor must develop and implement an Invasive Species Control Plan (ISCP). The ISCP must include the management and treatment program that the project sponsor will implement to ensure that all water withdrawn from the withdrawal site is managed or treated prior to its distribution to transportation vehicles to prevent potentially invasive, harmful, or nuisance species from entering other watersheds in the basin. The management and treatment program must also address the significance of all moveable project equipment as pathways for the rapid movement of invasive species from one project site to another and the methods that will be used to prevent this type of mechanical transmission of problematic species. An ISCP may be approved by the Commission as part of a docket or it may be approved (or modified) by the Executive Director after the Commission has issued a docket approval. The provisions of this plan will be incorporated by reference into the docket.

 (xi) Pass-by flow requirement. The project withdrawal may not cause the stream flow below the point of withdrawal to be less than the Q7-10 flow, or a more stringent value recommended by the appropriate host state agency. If the withdrawal is located in shared waters, a more stringent requirement applied by either state may be considered. Whenever the streamflow below the point of withdrawal is less than the minimum pass-by amount, no withdrawal may be made and the entire natural streamflow must be allowed to pass. Pass-by conditions also may include conditions intended to minimize short-term swings in surface flow volumes. The withdrawal site operations plan submitted with an application for a new surface water withdrawal must include the method and equipment to be used to demonstrate compliance with applicable pass-by requirements. No withdrawal may be initiated until the method and equipment to be used to demonstrate compliance with the pass-by requirement are operational and thereafter no withdrawal may be made during any period during which the method and equipment are not operational.

 (2) Approved discharge as water supply source. The project sponsor of a facility discharging treated wastewater or non-contact cooling water in accordance with a valid Commission approval (i.e., a discharge docket) may apply for an ABR under these regulations to be an approved source of water for natural gas well projects. If the project sponsor meets the conditions set forth below. The project sponsor may also elect to use the normal review process or the Executive Director or the commission may require the normal review process to be used.

 (i) the discharge is operated in accordance with a valid docket issued by the Commission and a valid NPDES permit issued by the state and the discharger is in compliance with all terms of its Commission and state approvals;

 (ii) the natural gas well project(s) for which the water will be used are located within the Delaware Basin;

 (iii) if the discharge is to surface water, the proposed diversion will not adversely affect upstream or downstream dischargers (due to loss of assimilative capacity), downstream withdrawers, or aquatic life;

 (iv) if the discharge is to groundwater, the proposed diversion will not adversely affect groundwater levels or streamflows in the vicinity of the discharge;

 (v) the bulk water sale agreement between the seller and the natural gas well-related user includes the following:

 (A) a condition stating, ''Purchasers of water for uses related to natural gas well projects are advised that such projects may be commenced within the Delaware Basin only after the project sponsor has obtained, in addition to any permits required by the host state, the approval of the Delaware River Basin Commission for development and operation of a well pad site or sites.''

 (B) a condition stating, ''Water from sources within the Delaware Basin may not be exported for use outside the Delaware Basin without the express approval of the Delaware River Basin Commission.''

 (vi) the project sponsor institutes a system for recording the date, amount, carrier, vehicle and destination of each tank-load of water sold (or an equivalent tracking mechanism for delivery by pipeline. The project sponsor must also obtain written confirmation that the transferred wastewater was received by the intended destination facility. The project sponsor must provide this information to the Commission upon request by the Executive Director.

 (e) New water sources for uses related to natural gas development

 (1) General provisions.

 (i) Docket approval required. A new surface or groundwater water withdrawal or the diversion of mine drainage water for uses related to natural gas development activities may be made only in accordance with a docket issued by the Commission following the normal process for Commission review and approval of projects, involving an application, technical review, publication of a draft docket, public hearing, and Commission action at a public meeting. A new water source located within the physical boundaries of an approved NGDP may be approved for uses within the NGDP by means of an ABR. Such new water sources are subject to all of the requirements in this section and those set forth in Section 7.4(e)(2), (3), and (4).

 (ii) Substantive requirements. New water sources approved for uses related to natural gas development activities will be subject to the conditions set forth below as well as to any additional conditions that the Commission deems necessary to protect the water resources of the Basin in accordance with the Commission's Comprehensive Plan.

 (2) Conditions applicable to new water sources for uses related to natural gas development activities are set forth below:

 (i) Non-point source pollution control plan. If the source is located within the drainage area of a portion of the Delaware River classified by the Commission as Special Protection Waters (SPW), the applicant must demonstrate compliance with Section 3.10.3A.2.e. of the Commission's Water Quality Regulations, providing for development and implementation of a Non-Point Source Pollution Control Plan (NPSPCP). The NPSPCP must be consistent with the more stringent of Commission and state requirements for erosion and sedimentation controls to be implemented at the site of the withdrawal or diversion facility, including measures to control stormwater both during and after construction. The post-construction portion of the plan must describe the final site conditions, including a pre- and post-construction project hydrograph analysis, permanent facilities, equipment, access roads, and all stormwater control structures that may be necessary after final site restoration has been completed. No site clearing or construction work at the withdrawal site may be initiated until the NPSPCP has been approved by the Commission, or by the host State in accordance with an Administrative Agreement between the Commission and the host State.

 (ii) Natural diversity inventory assessment. Project sponsors are required to submit as part of the project application the results of a natural diversity inventory assessment (NDIA) for the water withdrawal site. The Commission reserves the right to prepare a separate NDIA at the expense of the project sponsor if it determines that a separate assessment is required.

 (iii) Metering and recording of withdrawals and transfers. Water withdrawals must be metered and recorded by means of an automatic continuous recording device, or flow meter, and measured to within 5% of actual flow. Any withdrawal in excess of the daily allocation approved by the Commission must be reported to the Commission within 48 hours of the exceedance. Withdrawn water must be conveyed directly to water storage tanks before it is transferred to hauling vehicles or pipelines unless otherwise approved in writing by the Executive Director. Total withdrawals must be recorded on a daily basis. Likewise, the volume and destination of each transfer of water from the withdrawal site must be recorded by truck load or pipeline transmission and a daily total maintained. For a period of ten (10) years following the withdrawal, all water withdrawal and transfer records must be available for inspection at the withdrawal site and furnished promptly at the request of the Executive Director or a designated member of the Commission staff. The docket or protected area permit holder must institute a system for recording the date, amount, carrier, vehicle and destination of each tank-load of water sold (or an equivalent tracking mechanism for delivery by pipeline), and provide this information in a Commission specified electronic format to the Commission upon request by the Executive Director.

 (iv) Reporting of withdrawals and transfers. The operator of a withdrawal for uses related to natural gas development must submit to the Commission on a quarterly basis reports indicating monthly and daily total withdrawals and daily total volumes transferred to individual natural gas well sites in a format prescribed by the Executive Director.

 (v) Water withdrawal site plan. A preliminary site plan for the proposed withdrawal site must accompany an application for Commission approval of a withdrawal. The preliminary plan must include a description of the site, the facilities to be installed on the site and a map indicating the location of the all facilities on the site. Final construction plans and specifications may be submitted with the application or after the Commission has issued an approval. No site clearing, site preparation, construction, or water withdrawal may commence at the site until final construction plans and specifications have been approved by the Executive Director.

 (vi) Water withdrawal site operations plan. The site operations plan for a new surface water withdrawal at a minimum must include: specific procedures for metering, recording, and reporting the pass-by flow and complying with the pass-by flow requirements; procedures for monitoring, reporting and recording the usage, transport, and destination of all water withdrawn at the site; and all other procedures required to ensure compliance with the conditions set forth in the approval (see (iii) above). No construction may be initiated until the Commission has approved the docket and the Executive Direction has approved the site operations plan.

 (vii) Notice of construction start and completion. The project sponsor must notify the Executive Director of the initiation of construction. Within 30 days of completion of construction of the approved project, the project sponsor must submit a statement to the Commission, signed by the project sponsor's engineer or other responsible agent, advising the Commission that construction of the project has been completed consistent with the approved plans, and stating the final construction cost of the project and the date the project was or is scheduled to be placed in operation.

 (viii) Expiration of approval. An approval by the Commission expires three years from the approval date unless prior thereto the holder of the approval has commenced operation of the project or unless the Executive Director extends the approval for up to one year upon a showing by the project sponsor that substantial funds in relation to the cost of the project have been expended in reliance on the approval.

 (ix) Approval limited to withdrawal. Commission approval of a water withdrawal does not constitute approval or permission to commence natural gas development in the Delaware River Basin, including but not limited to: preparing a natural gas well site, drilling a natural gas well, stimulating a natural gas well, or storing, transporting, or disposing of hydraulic fracturing or flowback fluid.

 (x) Restricted access and operations. Access to the withdrawal site must be restricted through use of fencing, signage or other similar means. In addition, the withdrawal site location must be restricted to operations associated with the function of water withdrawal. These areas may not be used as staging areas for the addition of chemicals (except as required by an Invasive Species Control Plan) or fuel in excess of the quantity needed to run an emergency generator if one is used.

 (xi) Other approvals. Commission approval does not exempt the owner or operator of a water source from obtaining all necessary permits and/or approvals from other state, federal or local government agencies with jurisdiction over the water withdrawal or diversion project or associated activities.

 (xii) Floodplain regulations. Project sites that are located in the Flood Hazard Area (defined as the 100-year floodplain in the Commission's Administrative Manual—Part III Basin Regulations—Flood Plain Regulations) must comply with the Commission's Flood Plain Regulations (FPR).

 (xiii) Drought emergency plan. For the duration of any drought emergency declared by the Governor of the state in which the water withdrawal is located or by the Commission, water withdrawals by the project sponsor in accordance with this approval shall be subject to any prohibition by the Governor, the state emergency management agency, the state environmental protection agency, or the state drought coordinator to the extent applicable, and to any emergency resolutions or orders issued by the Commission. The project sponsor must submit as part of its application a Drought Emergency Plan, including drought contingency notice to all users and providing for cessation of operations in the event required by state or Commission authorities. The provisions of this plan will be incorporated by reference into the docket.

 (3) Additional submittals and conditions applicable to new surface water withdrawals approved by ABR, docket, or protected area permit.

 (i) Invasive species control plan. If determined by the Commission to be necessary, the project sponsor must develop and implement an Invasive Species Control Plan (ISCP). The ISCP must include the management and treatment program that the project sponsor will implement to ensure that all water withdrawn from the withdrawal site is managed or treated prior to its distribution to transportation vehicles to prevent potentially invasive, harmful, or nuisance species from entering other watersheds in the basin. The management and treatment program must also address the significance of all moveable project equipment as pathways for the rapid movement of invasive species from one project site to another and the methods that will be used to prevent this type of mechanical transmission of problematic species. An ISCP may be approved by the Commission as part of a docket or it may be approved (or modified) by the Executive Director after the Commission has issued a docket approval. The provisions of this plan will be incorporated by reference into the docket.

 (ii) Pass-by flow requirement. The project withdrawal may not cause the stream flow below the point of withdrawal to be less than the Q7-10 flow, or a more stringent value recommended by the appropriate host state agency. If the withdrawal is located in shared waters, a more stringent requirement applied by either state may be considered. Whenever the streamflow below the point of withdrawal is less than the minimum pass-by amount, no withdrawal may be made and the entire natural streamflow must be allowed to pass. Pass-by conditions also may include conditions intended to minimize short-term swings in surface flow volumes. The withdrawal site operations plan submitted with an application for a new surface water withdrawal must include the method and equipment to be used to demonstrate compliance with applicable pass-by requirements. No withdrawal may be initiated until the method and equipment to be used to demonstrate compliance with the pass-by requirement are operational and thereafter no withdrawal may be made during any period during which the method and equipment are not operational.

 (4) Additional submittals, conditions applicable to new groundwater withdrawals.

 (i) Hydrogeologic report. For all groundwater well sources, a Final Hydrogeologic Report detailing extended pumping test procedures, results and analyses must be provided with the application. The Final Hydrogeologic Report must include a discussion of field procedures, a listing of all data gathered, an analysis of the data and an evaluation of the impact of the proposed withdrawal on the aquifer and on other groundwater and surface water users in the vicinity. All relevant data, including but not limited to a geologic map, well log, water level charts, tables and graphs for the pumped well, monitoring wells, and nearby perennial streams, wetlands and other sensitive hydrologic features must be submitted. The pumping test may be of not less than 48 hours pumping duration, unless approved in writing by the Executive Director or in the Commission approval, at an uninterrupted, constant withdrawal rate of not less than the proposed pumping rate. Information to be collected must include, but is not limited to the following:

 (A) Date and time of all static, pumping, and recovery water level measurements

 (B) Record of pumping rate measured frequently throughout the test

 (C) Sufficient static water level measurements in all wells and at all monitoring points to determine trends in water level changes prior to start of pumping

 (D) Pumping and recovery measurements in the pumped well and observation wells

 (E) Monitoring of wells sufficient to determine all possible interference

 (F) Records of precipitation, measurements or observations of nearby streamflows, and weather conditions throughout the test

 (G) A map identifying all nearby wells owned by others that could be affected by pumping of the new well(s) and the following information for each if available:

Name of Well Owner
Telephone No. of Well Owner
Address of Well Owner
State Well ID No.
Type of Use
Date Drilled
Depth Drilled (feet)
Borehole Diameter (inches)
Casing Diameter (inches)
Casing Depth (feet below ground surface)
Top of Well Screen Depth (feet),
Bottom of Well Screen Depth (feet)
Pump Type
Estimated Pump Capacity (gpm)
Intake Setting Depth (feet)
Approximate Location of Well on Property.
Latitude of Well in DMS, North
Longitude of Well in DMS, West

 (ii) Obligations relating to interference.

 If the monitoring required herein, or any other data or information demonstrates that the operation of this project significantly affects or interferes with any designated uses of ground or surface water, or if the project sponsor receives a complaint regarding this project, the project sponsor must immediately notify the Executive Director of any complaints and unless excused by the Executive Director, will investigate such complaints. The project sponsor must direct phone call notifications of complaints involving water resources to the DRBC. Oral notification must always be followed up in writing directed to the Executive Director. In addition, the project sponsor must provide written notification to all potentially impacted users of wells or surface water users of the project sponsor's responsibilities under this condition. Any ground or surface water user which is substantially adversely affected, rendered dry or otherwise diminished as a result of the docket holder's project withdrawal, must be repaired, replaced or otherwise mitigated at the expense of the project sponsor. A report of investigation and/or mitigation plan prepared by a hydrologist must be submitted to the Executive Director as soon as practicable or within the time frame directed by the Executive Director. The Executive Director will make the final determination regarding the validity of such complaints, the scope or sufficiency of such investigations, and the extent of appropriate mitigation measures, if required.

 (f) Importation of water for uses related to natural gas development.

 Commission determinations regarding applications for the importation of water for uses related to natural gas development will be made in accordance with Section 2.30 of the Commission's Water Code.

 (g) Use of recovered flowback and production water.

 (1) General. Recovered flowback and production water may be recycled for use in natural gas well stimulation activities at the project sponsor's Commission-approved well pads in accordance with conditions of the well pad dockets or ABRs. Any reuse must be reported to the Commission in accordance with the requirements set forth in the docket or ABR. Flowback and production water may be used only as expressly approved by the docket or ABR.

 (2) Conditions of Use. In addition to the storage requirements set forth in Section 7.5(h)(2)(iv), an approval for reuse of recovered flowback and production water will be subject to conditions including but not limited to transport, sampling, and tracking requirements that are necessary in the view of the Commission to protect the water resources of the basin.

 (3) Storage of recovered flowback and production water. The storage of recovered flowback and production water must be in accordance with Section 7.5 (h)(2)(iv).

Section 7.5. Well pads for Natural Gas Activities.

 (a) Purpose and Applicability.

 (1) The headwaters and groundwater of the Delaware River Basin are critically important to the supply of clean water to satisfy basin needs for drinking water, aquatic life, recreation, and other designated uses. Over 15 million people (approximately five percent of the nation's population) rely on the waters of the Delaware River Basin for drinking, agricultural, and industrial use, but the watershed drains only four-tenths of one percent of the total continental U.S. land area. The 15 million figure includes about seven million people in New York City and northern New Jersey who live outside the basin. New York City gets roughly half its water from three large reservoirs located on tributaries to the Delaware. The ground waters of the Basin are protected and regulated under Article 2, Section 2.20 and Article 3, Section 3.40 of the Water Code. Protecting and managing areas in source watersheds is essential to maintaining the high water quality of the National Scenic and Recreational Delaware River and the River's tributary systems. Protecting the high value landscapes of forests and water resources implements and is consistent with Goal 3.2 of the Water Resources Plan for the Delaware River Basin (Resolution 2004-BP) and with the anti-degradation program codified in the Commission's Special Protection Waters program, DRBC Water Quality Regulations, 18 C.F.R. Part 410, Article 3.10.3.A.2 et seq.

 (2) The siting and operation of natural gas well pads within the Delaware River Basin may have a substantial impact on the water resources of the Basin. To allow for the development of natural gas resources while minimizing adverse impact to water resources, all natural gas well pads to be located within the Delaware River Basin are subject to the siting, design and operational criteria of this Section 7.5. All natural gas well pad projects in the Delaware River Basin require Commission approval. As provided for in Section 7.1(i), DRBC is relying on the Commonwealth of Pennsylvania and State of New York (PADEP and NYSDEC, respectively) regarding the construction and operation of natural gas well pads except as specified in this section.

 (b) Administration. Applications for review and approval of well pads must be filed with and approved by the DRBC prior to the initiation of construction at any well pad site.

 (1) Types of review and approval.

 (i) Natural Gas Development Plan Docket

 (ii) Well Pad docket

 (iii) Well Pad ABR

 (2) Public Notice Provisions. The project sponsor of a natural gas project under Sections 7.5(b)(1) is responsible for complying with the public notice provisions in Section 7.3(i).

 (3) Siting Restrictions. A well pad may not be sited:

 (i) In the Flood Hazard Area (defined as the 100-year floodplain in the Commission's Administrative Manual—Part III Basin Regulations—Flood Plain Regulations) of any waterway in the Delaware River Basin.

 (ii) On a slope with a pre-alteration grade of 20% or greater.

 (iii) In an area that serves as a critical habitat for a federal or state designated threatened or endangered species unless host state/federal mitigation measures have been approved.

 (4) Setbacks. All natural gas well pad sites must adhere to the following minimum setback requirements:

 (i) Water body: 500 ft

 (ii) Wetlands: 500 ft

 (iii) Occupied Homes: defer to host state

 (iv) Public Buildings: defer to host state

 (v) Public Roads: defer to host state

 (vi) Surface water supply intake: 500 ft

 (vii) Water supply reservoir: 500 ft

 (viii) Public water supply well defer to host state

 (ix) Domestic water supply well defer to host state

 (5) Spacing. All wellbores must adhere to the applicable unitization/spacing requirements of the host state.

 (6) De minimis Change. A project sponsor may modify the location of an individual well pad by up to 100 feet without applying for a modification to the well pad approval or NGDP approval as long as the new location does not result in a violation of any of the siting restrictions contained in Section 7.5(b)(3), the minimum setbacks contained in Section 7.5(b)(4) or any provision of the approval. The project sponsor most notify the Commission at least thirty (30) calendar days before commencing construction at the new location.

 (7) Inspection. The well pad site, natural gas well, and operational records for property owned or leased by the project sponsor, or to which the project sponsor otherwise has legal access, for natural gas development activities, must be available for inspection as provided in Section 7.3(j).

 (8) Timing. The project sponsor may not commence or conduct clearing of land for access or for well pad construction unless the project sponsor has first obtained a well pad approval and the applicable Executive Director approvals or acknowledgements required in Section 7.5.

 (9) Variances.

 (i) A project sponsor may request the Executive Director to grant a variance to the provisions of Sections 7.5(b)(3) and 7.5 (b)(4) of this rule. No variances shall be granted to the restriction against locating well pads in a floodway as provided in the Commission's Administrative Manual—Part III Basin Regulations—Flood Plain Regulations.

 (ii) The Executive Director, after determining whether the requirements of Section 7.5(b)(9)(iii) below are met, may approve the variance, deny the variance, or recommend a public hearing and decision by the Commission. For a variance to be considered, the project sponsor must demonstrate that:

 (A) application of the requirements in Sections 7.5(b)(3) and 7.5(b)(4) would result in an undue burden for the project sponsor because of reasons affecting the leaseholding; and

 (B) the requested siting conditions would be equally or more protective of water resources of the basin, taking into consideration mitigation measures relating to, among other factors, spill control, containment, berms, enhanced erosion and sediment controls, project timing restrictions to avoid affecting threatened or endangered species, and/or vegetated buffers.

 (iii) Before any request for a variance will be considered, the project sponsor must provide the Executive Director with evidence that it has notified the property and the mineral rights owners in writing of the intent to request a variance.

 (iv) The Executive Director may approve a variance subject to additional conditions to protect the water resources of the basin.

 (c) Natural Gas Development Plans.

 (1) Applicability. Natural Gas Drilling Plans (NGDP) are intended to identify foreseeable natural gas development in a defined geographic area, facilitate analysis of potential water resource impacts and identify measures to minimize these impacts. In accordance with these regulations, a Commission approved NGDP is required of all project sponsors that have:

 (i) natural gas well pad leaseholds in the Delaware River Basin (basin) encompassing a total of over 3,200 acres; or,

 (ii) the intention to construct more than five (5) natural gas well pads in the basin.

 If the project sponsor is required to submit a NGDP, within 3 months of filing its first well pad application, they must submit a NGDP application, which should contain the landscape map and the constraints analysis map as described in Section 7.5(c)(3)(ii) and (iii) above for its entire basin leaseholds or specified leasehold unit. Within 12 months of filing the first well pad application, the project sponsor must supplement their NGDP application with the circulation plan as described in 7.5(c)(3)(iv) above for the entire basin leaseholds or specified leasehold unit.

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