PROPOSED RULEMAKING
SUSQUEHANNA RIVER BASIN COMMISSION
[25 PA. CODE CHS. 803--805]
Review and Approval of Projects; Special Regulations and Standards; Hearings/Enforcement Actions
[36 Pa.B. 3547]
[Saturday, July 8, 2006]Summary: This document contains extensive amendments to project regulations concerning standards and hearings/enforcement actions. Because revisions are too numerous to show within the original regulations, proposed Parts 803, 804 and 805 are being published here in their entirety, with an explanation of changes in the supplementary information section below. These regulations provide the procedural and substantive rules for Susquehanna River Basin Commission (SRBC) review and approval of water resources projects and the procedures governing hearings and enforcement actions. These amendments include additional due process safeguards, add new standards for projects, improve organizational structure, incorporate recently adopted policies and clarify language.
Dates: Comments on these proposed amendments may be submitted to the SRBC on or before September 1, 2006. The Commission has scheduled public hearings on the proposed rules as follows:
a. August 8, 2006, 6:30 p.m.--Owego Treadway Inn, Owego, NY
b. August 10, 2006, 8:30 a.m.--PA Bureau of Topographic and Geologic Survey, Middletown, PA
c. August 10, 2006, 6:30 p.m.--Kings College, Snyder Room, Wilkes-Barre, PA
Those wishing to testify are asked to notify the Commission in advance if possible at the regular or electronic addresses given as follows.
Addresses: Comments may be mailed to: Richard A. Cairo, Susquehanna River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102-2391; rcairo@srbc.net.
For Further Information Contact: Richard A. Cairo, General Counsel/Secretary, (717) 238-0423; Fax: (717) 238-2436; e-mail: rcairo@srbc.net. Also, for further information on the proposed rule making action, visit the Commission's web site at www.srbc.net.
SUPPLEMENTARY INFORMATION:
Background
The SRBC adopted a final rule on May 11, 1995, published at 60 FR 31391, June 15, 1995 establishing: (1) the scope and procedures for review and approval of projects under Section 3.10 of the Susquehanna River Basin Compact, Pub. L. No. 91-575; 83 Stat. 1509 et seq. (the compact); (2) special standards under Section 3.4(2) of the compact governing water withdrawals and consumptive use of water; and (3) procedures for hearings and enforcement actions.
Need for Amendments
After 11 years of experience with these regulations, the SRBC has uncovered many provisions that require strengthening, reorganization and clarification. In addition, the Commission has since adopted several important policies relating to the management of the basin's water resources and the enforcement of these regulations. As a matter of sound legal practice, these policies need to be incorporated into the language of the regulations.
Highlights of Major Amendments
18 CFR PART 803--REVIEW AND APPROVAL OF PROJECTS
Subpart A--General Provisions
1. Section 803.3 Definitions.--A definition for ''change in ownership'' has been included because of modifications proposed in Section 803.4, related to certain grandfathered uses or withdrawals.
2. Section 803.4 Projects requiring review and approval.--This section reorganizes and expands what projects require review and approval and whether any exemptions apply. In part, this section consolidates provisions currently contained in various sections of the existing regulations. A significant addition is that to the extent that a consumptive water use project involves a withdrawal from ground or surface water, the withdrawal will also be subject to review.
Additionally, the current 100,000 gallons per day (gpd) threshold for withdrawals has been expanded to include any combination of ground or surface water withdrawals exceeding that threshold. This section also will end the recognition of ''pre-compact'' or ''grandfathered'' consumptive uses or withdrawals upon a change of ownership, and will end the practice under existing Section 803.31 of allowing the transfer of project approvals when a change of ownership occurs.
Exceptions are contained in the definition of the term ''change of ownership'' for the transfer of projects involving corporate reorganizations, transfers to certain family members, and transfers of agricultural land for so long as it continues to be used for agricultural purposes. (The existing project review and approval requirements are currently suspended for projects involving agricultural water use and the Commission intends to continue the suspension as its member jurisdictions actively pursue alternative consumptive use compliance options for agricultural operations in cooperation with the Commission.)
Subpart B--Application Procedure
3. Section 803.12 Constant-rate aquifer testing.--Requirements regarding constant-rate aquifer tests are set forth in a new section and expanded to incorporate a time limit for testing to occur.
4. Section 803.14 Contents of application.--This section is reorganized to include a comprehensive list of information that a project sponsor must provide when making application to the Commission.
5. Section 803.16 Completeness of application.--This section replaces Section 803.26 and sets out a procedure for dealing with incomplete project applications pursuant to existing Commission practice.
Subpart C--Standards for Review and Approval
6. Section 803.21 General standards.--This section covers the criteria for approval of a project by the Commission. Also, in accordance with current policy, provisions are added to allow the Commission to suspend the processing of a project application if a signatory party or a political subdivision of a signatory party exercising lawful authority over the project has disapproved the project, and to suspend an approval itself if a project sponsor fails to maintain such approvals.
7. Section 803.22 Standards for consumptive uses of water.--This section replaces the current Section 803.42. Several changes are made, including the removal of a specific low flow criterion (Q7-10) and inclusion of an approval by rule provision for certain consumptive use projects that obtain their water from public water supplies. These types of projects would no longer have to be individually approved by the Commission.
8. Section 803.23 Standards for water withdrawals.--This section consolidates existing Sections 803.43 (Standards for ground-water withdrawals) and 803.44 (Standards for surface water withdrawals) into a single section covering standards for all withdrawals, and clarifies the conditions or limitations that can be imposed on withdrawals to avoid adverse impacts on the environment or other users. Application standards for constant-rate aquifer tests for proposed groundwater withdrawals have been moved to Section 803.12. Monitoring requirements are moved to new Section 803.30 (Monitoring), where details on measuring and recording, reporting, and monitoring methodology are set forth.
9. Section 803.24 Standards for diversions.--This section sets standards for the approval of diversions by incorporating a Commission policy applying to out-of-basin diversions of water and also sets standards for in-basin diversions. As permitted under the terms of Section 3.10 of the compact, this new section exempts ''out-of-basin'' diversions up to 20,000 gpd. In-basin diversions of any quantity continue to be subject to review and approval.
10. Section 803.25 Water conservation standards.--The water conservation standards currently set forth in Part 804, Subpart B, are moved to Section 803.25. While no substantive changes are being made now in these proposed revisions, the Commission considers water conservation to be a vital component of water resources management and will revisit these standards in the near future in close coordination with the member jurisdictions.
Subpart D--Terms and Conditions of Approval
11. Section 803.30 Monitoring.--This section consolidates existing provisions and Commission practice related to monitoring, removes triennial water quality monitoring requirements, sets a daily quantity measurement standard unless otherwise set by the Commission, certifies the accuracy of measurement devices every 5 years, sets quantity reporting as the requirement unless otherwise specified, and special reporting of violations and loss of measurement capabilities.
12. Section 803.31 Duration of approvals and renewals.--This section would be a modification of the existing Section 803.30. Approval durations are reduced to a general term of 15 years instead of 25 years, though exceptions for cause are provided. Other changes relate to the expiration and extension of approvals for uninitiated uses of water, the abandonment or discontinuance of a water use, and the renewal of expiring approvals.
13. Section 803.32 Reopening/modification.--The application process for reopening has been simplified for interested parties. Other changes address certain actions now currently imposed as docket conditions, such as:
a. Modify or revoke docket approvals for failure to comply with docket conditions, and failure to obtain or maintain approvals from other federal, state, or local agencies;
b. Require a project sponsor to provide a temporary source of water if interference occurs; and
c. Reopen any approval upon its own motion to make corrective modifications.
14. Section 803.34 Emergencies.--This section expands the current Section 803.27, dealing with the issuance of emergency certificates by the Executive Director. It incorporates the details of existing Commission policy and details the procedure for obtaining an emergency certificate to protect the public health, safety, and welfare, or to avoid substantial and irreparable injury.
15. Section 803.35 Fees.--This section makes it clear that project sponsors have an affirmative duty under the Commission's regulations to pay such fees as may be established by the Commission.
18 CFR PART 804--WATER WITHDRAWAL REGISTRATION
16. Section 804.2 Time limits.--The only substantive change in this part is the addition of language clarifying that compliance with a registration or reporting requirement, or both, of a member jurisdiction that is substantially equivalent to the Commission registration requirement shall be considered in compliance with the Commission requirement.
18 CFR PART 805--HEARINGS/ENFORCEMENT ACTIONS
Subpart A--Conduct of Hearings
17. Section 805.1 (a) Public hearings.--This section remains largely intact, with revisions to clarify the rules governing standard public hearings before the Commission on such matters as rulemaking, comprehensive plan additions, and project review.
18. Section 805.2 Administrative appeals.--This is a new section providing an administrative appeal procedure for persons aggrieved by any action or decision of the Commission or the Executive Director. Hearings under this section provide another administrative appeal option prior to an appeal to the United States District Court. Also included are provisions for stays and intervention of parties.
19. Section 805.3 Hearing on administrative appeal.--This section adds detailed procedures for hearings to be held on administrative appeals, currently contained in Section 805.2 for adjudicatory hearings. Included are the powers of the hearing officer, provisions for recording the hearing proceedings, provisions for staff and other expert testimony, provisions for the inclusion of written testimony, rules for assessing costs, and an in forma pauperis procedure.
Subpart B--Compliance and Enforcement
20. Section 805.11 Duty to comply.--New section affirming the existing duty of any person to comply with any provision of the compact or rules, regulations, orders, approvals, and conditions of approval.
21. Section 805.12 Investigative powers.--This new section sets forth the powers of agents or employees of the Commission to inspect or investigate facilities to determine compliance with any provisions of the compact or the regulations of the Commission. These requirements are currently set forth as conditions in docket approvals. Owners and operators of facilities are also directed to provide true and accurate information as requested by the Commission and are subject to the ''falsification to authorities'' statutes of the member jurisdictions.
22. Section 805.13 Notice of Violation.--This section provides a procedure for the issuance of a Notice of Violation to an alleged violator of any rule, regulation, order, approval, or docket condition, consistent with current Commission practice.
23. Section 805.14 Orders.--This is a section explicitly stating the authority of both the Executive Director and the Commission to issue various orders, including requiring a project to cease and desist any action or activity to prevent harm and enforce the provisions of the compact, regulations, docket conditions, or any rules or regulations of the Commission.
24. Section 805.15 Show cause proceeding.--This section establishes the basic procedural device for enforcement of Commission regulations and docket conditions through the imposition of penalties or other sanctions on violators pursuant to Section 15.17 of the compact. To insure the integrity of this process, provisions are included to separate adjudicatory and prosecutorial functions of the Commission. The provisions of this section also preserve the opportunity for the alleged violator to present testimony for consideration prior to action by the commissioners.
25. Section 805.18 Settlement by agreement.--Subparagraph (b) incorporates the standard language of all Commission settlement agreements that the Commission may reinstitute a civil penalty action if the violator fails to carry out any of the terms of the settlement agreement.
List of Subjects in 18 CFR Parts 803, 804, and 805 Administrative practice and procedure, Water resources.
Accordingly for the reasons set forth in the preamble, 18 CFR Parts 803, 804, and 805 are proposed to be revised as follows:
PART 803--REVIEW AND APPROVAL OF PROJECTS
Subpart A--General Provisions
Sec.
803.1 Scope. 803.2 Purposes. 803.3 Definitions. 803.4 Projects requiring review and approval. 803.5 Projects that may require review and approval. 803.6 Transferability of Project Approvals. 803.7 Concurrent project review by member jurisdictions. 803.8 Waiver/modification. Subpart B--Application Procedure
803.10 Purpose of this subpart. 803.11 Preliminary consultations. 803.12 Constant-rate aquifer testing. 803.13 Submission of application. 803.14 Contents of application. 803.15 Notice of application. 803.16 Completeness of application. Subpart C--Standards for Review and Approval
803.20 Purpose of this subpart. 803.21 General standards. 803.22 Standards for consumptive uses of water. 803.23 Standards for water withdrawals. 803.24 Standards for diversions. 803.25 Water conservation standards. Subpart D--Terms and Conditions of Approval
803.30 Monitoring. 803.31 Duration of approvals and renewals. 803.32 Reopening/modification. 803.33 Interest on fees. 803.34 Emergencies. 803.35 Fees. Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 et seq.
Subpart A--General Provisions Section 803.1 Scope.
(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 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. This part, and every other part of 18 CFR Chapter VIII, shall also be incorporated into and made a part of the comprehensive plan.
(b) When projects subject to Commission review and approval are sponsored by governmental authorities, 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. For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the Commission as a regional agency of the member jurisdictions, no expenditure or commitment shall be made by any governmental authority for or on account of the construction, acquisition or operation of any project or facility unless it first has been included by the Commission in the comprehensive plan.
(c) 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.
(d) Except as otherwise stated in this part, this part shall be effective on _________________ (date of adoption).
(e) 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.
(f) Any forms or documents referenced in this part may be obtained from the Commission at 1721 North Front Street, Harrisburg, PA 17102-2391, or from the Commission's website at http://www.srbc.net.
Section 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, Sections 803.22, 803.23 and 803.24 of this part 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 ground and surface 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 and all subsequent parts is to ascertain and effectuate the purposes and the intention of the Commission set out in this section. These regulations shall not be construed in such a way as to limit the authority of the Commission, the enforcement actions it may take, or the remedies it may prescribe.
Section 803.3 Definitions.
For purposes of Parts 803, 804 and 805, unless the context indicates otherwise, the words listed in this section are defined as follows:
Agricultural water use. A water use associated primarily with the raising of food, fiber or forage crops, trees, flowers, shrubs, turf, livestock and poultry. The term shall include aquaculture.
Application. A written request for action by the Commission including without limitation thereto a letter, referral by any agency of a member jurisdiction, or an official form prescribed by the Commission.
Basin. The area of drainage of the Susquehanna River and its tributaries into the Chesapeake Bay to the southern edge of the Pennsylvania Railroad bridge between Havre de Grace and Perryville, Maryland.
Change of Ownership. A change in ownership shall mean any transfer by sale or conveyance of the real or personal property comprising a project. A change of ownership shall not include:
(1) A corporate reorganization of the following types:
(i) Where property is transferred to a corporation by one or more persons solely in exchange for stock or securities of the same corporation, provided that immediately after the exchange the same person or persons are in control of the transferee corporation, that is, they own 80 percent of the voting stock and 80 percent of all other stock of the corporation.
(ii) Where such transfer is merely a result of a change of the name, identity, internal corporate structure or place of organization and does not affect ownership and/or control.
(2) Transfer of a project to the transferor's spouse or one or more lineal descendents, or any spouse of such lineal descendents, or to a corporation owned or controlled by the transferor, or the transferor's spouse or lineal descendents, or any spouse of such lineal descendents, for so long as the combined ownership interest of the transferor, the transferor's spouse and/or the transferor's lineal descendent(s) and their spouses, continues to be 51 percent or greater.
(3) Transfer of land used primarily for the raising of food, fiber or forage crops, trees, flowers, shrubs, turf, livestock, poultry or aquaculture, for so long as such agricultural use and its associated agricultural water use continues.
Commission. The Susquehanna River Basin Commission, as established in Article 2 of the compact, including its commissioners, officers, employees, or duly appointed agents or representatives.
Commissioner. Member or Alternate Member of the Susquehanna River Basin Commission as prescribed by Article 2 of the compact.
Compact. The Susquehanna River Basin Compact, P. L. 91-575; 84 Stat. 1509 et seq.
Comprehensive plan. The comprehensive plan prepared and adopted by the Commission pursuant to Articles 3 and 14 of the compact.
Consumptive use. The loss of water transferred through a manmade conveyance system or any integral part thereof (including such water that is purveyed through a public water supply or wastewater system), due to transpiration by vegetation, incorporation into products during their manufacture, evaporation, injection of water or wastewater into a subsurface formation from which it would not reasonably be available for future use in the basin, diversion from the basin, or any other process by which the water is not returned to the waters of the basin undiminished in quantity.
Diversion. The transfer of water into or out of 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.
Governmental authority. A federal or state government, or any political subdivision, public corporation, public authority, special purpose district, or agency thereof.
Groundwater. Water beneath the surface of the ground within a zone of saturation, whether or not flowing through known and definite channels or percolating through underground geologic formations, and regardless of whether the result of natural or artificial recharge. The term includes water contained in quarries, pits and underground mines having no significant surface water inflow, aquifers, underground water courses and other bodies of water below the surface of the earth. The term also includes a spring in which the water level is sufficiently lowered by pumping to eliminate the surface flow.
Member jurisdiction. The signatory parties as defined in the compact, comprised of the States of Maryland and New York, the Commonwealth of Pennsylvania, and the United States of America.
Member state. The States of Maryland and New York, and the Commonwealth of Pennsylvania.
Person. An individual, corporation, partnership, unincorporated association, and the like and shall have no gender and the singular shall include the plural. The term shall include a governmental authority and any other entity which is recognized by law as the subject of rights and obligations.
Pre-compact consumptive use. The maximum average daily quantity or volume of water consumptively used over any consecutive 30-day period prior to January 23, 1971.
Project. Any work, service, activity, or facility undertaken which is separately planned, financed or identified by the Commission, or any separate facility undertaken or to be undertaken by the Commission or otherwise within a specified area, 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.
Project sponsor. Any person who owns, operates or proposes to undertake a project. The singular shall include the plural.
Public water supply. A system, including facilities for collection, treatment, storage and distribution, that provides water to the public for human consumption, that:
(1) Serves at least 15 service connections used by year-round residents of the area served by the system; or
(2) Regularly serves at least 25 year-round residents.
Surface water. Water on the surface of the earth, including water in a perennial or intermittent watercourse, lake, reservoir, pond, spring, wetland, estuary, swamp or marsh, or diffused surface water, whether such body of water is natural or artificial.
Water or waters of the basin. Groundwater or surface water, or both, within the basin either before or after withdrawal.
Water resources. Includes all waters and related natural resources within the basin.
Withdrawal. A taking or removal of water from any source within the basin.
Section 803.4 Projects requiring review and approval.
Except for activities relating to site evaluation or as otherwise allowed under Section 803.34, no person shall undertake any of the following projects without prior review and approval by the Commission. The project sponsor shall submit an application in accordance with Subpart B and shall be subject to the applicable standards in Subpart C.
(a) Consumptive use of water. The consumptive water use projects described below shall require an application to be submitted in accordance with Section 803.12, and shall be subject to the standards set forth in Section 803.22, and, to the extent that it involves a withdrawal from groundwater or surface water, shall also be subject to the standards set forth in Section 803.23. Except to the extent that they involve the diversion of the waters of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section.
(1) Except for projects previously approved by the Commission for consumptive use and projects that existed prior to January 23, 1971, any project involving a consumptive water use of an average of 20,000 gallons per day (gpd) or more in any consecutive 30-day period.
(2) With respect to projects previously approved by the Commission for consumptive use, any project that will involve an increase in a consumptive use above that amount which was previously approved.
(3) Any project that will involve an increase in a consumptive use that existed prior to January 23, 1971, by an average of 20,000 gpd or more in any consecutive 30-day period.
(4) Any project that involves a consumptive use that will adversely affect the purposes outlined in Section 803.2 of this part.
(5) Any project involving a consumptive use of an average of 20,000 gpd or more in any 30-day period, and undergoing a change of ownership.
(b) Withdrawals. The projects described below shall require an application to be submitted in accordance with Section 803.12, and shall be subject to the standards set forth in Section 803.23. Hydroelectric projects, except to the extent that such projects involve a withdrawal, shall be exempt from the requirements of this section regarding withdrawals; 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 this section, Section 803.23, or 18 CFR Part 801.
(1) Except for projects previously approved by the Commission and projects existing prior to the dates specified in paragraph (4) below, any project withdrawing a consecutive 30-day average of 100,000 gpd or more from a groundwater or surface water source, or a combination of such sources.
(2) With respect to projects previously approved by the Commission, any project that increases a withdrawal above that amount which was previously approved and any project that will add a source or increase withdrawals from an existing source which did not require approval prior to ______ . (effective date of this regulation)
(3) Any project which involves a withdrawal from a groundwater or surface water source and which is subject to the requirements of Subsection (a) hereof regarding consumptive use.
(4) With respect to groundwater projects in existence prior to July 13, 1978, and surface water projects in existence prior to November 11, 1995, any project that will increase its withdrawal from any source or combination of sources, by a consecutive 30-day average of 100,000 gpd or more, above that maximum consecutive 30-day amount which the project was withdrawing prior to the said applicable date.
(5) Any project involving a withdrawal of a consecutive 30-day average of 100,000 gpd or more, from either groundwater or surface water sources, or in combination from both, and undergoing a change of ownership.
(c) Diversions. The projects described below shall require an application to be submitted in accordance with Section 803.12, and shall be subject to the standards set forth in Section 803.24. The project sponsors of out-of-basin diversions shall also comply with all applicable requirements of this part relating to consumptive uses and withdrawals. This requirement shall apply to diversions initiated on or after January 23, 1971.
(1) Any project involving the diversion of water into the basin and any project involving a diversion of an average of 20,000 gallons of water per day or more in any consecutive 30-day period out of the basin.
(2) With respect to diversions previously approved by the Commission, any project that will increase a diversion above that amount which was previously approved.
(3) Any project involving the diversion of water into the basin that existed prior to January 23, 1971, that will increase the diversion by any amount, and any project involving the diversion of water out of the basin that will increase the diversion an average of 20,000 gpd or more in any consecutive 30-day period.
(4) Any project involving the diversion of water into the basin and any project involving a diversion of an average of 20,000 gallons of water per day or more in any consecutive 30-day period out of the basin, and undergoing a change of ownership.
(d) Any project on or crossing the boundary between two member states.
(e) Any project in a member state having a significant effect on water resources in another member state.
(f) Any project which has been or is required to be included by the Commission in its comprehensive plan, or will have a significant effect upon the comprehensive plan.
(g) Any other project so determined by the commissioners or Executive Director pursuant to Section 803.5 or 18 CFR part 801. Such project sponsors shall be notified in writing by the Executive Director.
Section 803.5 Projects that may require review and approval.
(a) The following projects, if not otherwise requiring review and approval under Section 803.4, may be subject to Commission review and approval as determined by the Commission or the Executive Director:
(1) Projects that may affect interstate water quality.
(2) Projects within a member state that have the potential to affect waters within another member state. This includes, but is not limited to, projects which have the potential to alter the physical, biological, chemical or hydrological characteristics of water resources of interstate streams designated by the Commission under separate resolution.
(3) Projects that may have a significant effect upon the comprehensive plan.
(4) Projects not included in paragraphs (a)(1) through (a)(3) 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.
(b) Determinations by the Executive Director may be appealed to the commissioners by filing an appeal with the Commission within 30 days after receipt of notice of such determination as set forth in part 805, Section 805.2.
Section 803.6 Transferability of Project Approvals
(a) Existing Commission approvals of projects undergoing a change in ownership as defined in Section 803.3 of this part may not be transferred to the new project sponsor(s). Such project sponsor(s) shall submit an application for approval as required by Section 803.4(a)(5), (b)(5) or (c)(4) of this part, and may operate such project under the terms and conditions of the existing approval, pending action by the Commission on the application, provided such project sponsor satisfies the requirements of Section 803.13(b) of this part.
(b) Existing Commission approvals of projects excluded from the definition of change of ownership in Section 803.3 of this part may be transferred to the new project sponsor(s), provided such project sponsor(s) notify the Commission in advance of the transfer of such project approval, which notice shall be on a form and in a manner prescribed by the Commission and under which the project sponsor(s) certify their or its intention to comply with all terms and conditions of the transferred approval and assume all other associated obligations.
Section 803.7 Concurrent project review by member jurisdictions.
(a) The Commission recognizes that agencies of the member jurisdictions will exercise their review authority and evaluate many proposed projects in the basin. The Commission will adopt procedures to assure compatibility between jurisdictional 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 member jurisdictions 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 member jurisdiction agency shall be considered Commission approved if issued pursuant to an agreement of understanding with the Commission specifically providing therefor.
Section 803.8 Waiver/modification.
The Commission may, in its discretion, waive or modify any of the requirements of this or any other part of its regulations if the essential purposes set forth in Section 803.2 continue to be served.
Subpart B--Application Procedure Section 803.10 Purpose of this subpart.
The purpose of this subpart is to set forth procedures governing applications required by Sections 803.4, 803.5, and 18 CFR part 801.
Section 803.11 Preliminary consultations.
(a) Any project sponsor of a project that is or may be subject to the Commission's jurisdiction 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 project 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, anticipated water needs, and the environmental impacts.
(b) Preliminary consultation shall be optional for the project sponsor (except with respect to aquifer test plans, see Section 803.12) and shall not relieve the sponsor from complying with the requirements of the compact or with this part.
Section 803.12 Constant-rate aquifer testing.
(a) A project sponsor submitting an application pursuant to Section 803.13 seeking approval to withdraw or increase a withdrawal of groundwater shall perform a constant-rate aquifer test prior to submission of such application.
(b) The project sponsor shall prepare a constant-rate aquifer test plan for prior review and approval by Commission staff before testing is undertaken.
(c) Unless otherwise specified, approval of a test plan is valid for two years from the date of approval.
(d) Approval of a test plan shall not be construed to limit the authority of the Commission to require additional testing or monitoring at any time (both before an approval and after).
Section 803.13 Submission of application.
(a) Project sponsors of projects subject to the review and approval of the Commission under Section 803.4 shall, prior to the time the project is undertaken, submit an application to the Commission.
(b) Project sponsors submitting an application for approval due to a change in ownership of a project as required by Section 803.4(a)(5), (b)(5) or (c)(4) of this part shall be permitted to continue operation of the project under an existing Commission approval pending action on the application by the Commission, provided that:
(1) On or before the date of transfer under which a change of ownership occurs, such project sponsor(s) certify an intention to comply with the terms and conditions of the existing Commission approval and assume all associated obligations, including the requirements of the Commission and the compact, which certification shall be on a form and in a manner prescribed by the Commission; and
(2) The application(s) required for approval are submitted to the Commission within ninety (90) days of the date of the transfer.
(c) To be deemed administratively complete, the application must include all information required and the applicable fee.
Section 803.14 Contents of application.
(a) Applications shall include, but not be limited to, the following information and, where applicable, shall be submitted on forms and in the manner prescribed by the Commission.
(1) Identification of project sponsor including any and all proprietors, corporate officers or partners, the mailing address of the same, and the name of the individual authorized to act for the sponsor.
(2) Description of project and site in terms of:
(i) Project location.
(ii) Project purpose.
(iii) Proposed quantity of water to be withdrawn.
(iv) Proposed quantity of water to be consumed, if applicable.
(v) Constant-rate aquifer tests. The project sponsor shall provide the results of a constant-rate aquifer test with any application which includes a request for a groundwater withdrawal. The project sponsor shall obtain Commission approval of the test procedures prior to initiation of the constant-rate aquifer test.
(vi) Water use and availability.
(vii) All water sources and the date of initiation of each source.
(viii) Supporting studies, reports, and other information upon which assumptions and assertions have been based.
(ix) Plans for avoiding or mitigating for consumptive use.
(x) Copies of any correspondence with member jurisdiction agencies.
(3) Anticipated impact of the proposed project on:
(i) Surface water characteristics (quality, quantity, flow regimen, other hydrologic characteristics).
(ii) Threatened or endangered species and their habitats.
(iii) Existing water withdrawals.
(4) Project estimated completion date and estimated construction schedule.
(b) The Commission may also require the project sponsor to submit the following information related to the project, in addition to the information required in Subsection (a) of this section, as deemed necessary.
(1) Description of project and site in terms of:
(i) Engineering feasibility.
(ii) Ability of project sponsor to fund the project or action.
(iii) 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 project sponsor should include information that may be required by Section 803.25 or any policy of the Commission relating to diversions.
(iv) Compatibility of proposed project with existing and anticipated uses.
(v) 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) Recreation potential.
(C) Fish and wildlife (habitat quality, kind and number of species).
(D) Natural environment uses (scenic vistas, natural and manmade travel corridors, wild and wilderness areas, wild, scenic and recreation rivers).
(E) Site development considerations (geology, topography, soil characteristics, adjoining and nearby land uses, adequacy of site facilities).
(F) Historical, cultural and archaeological impacts.
(2) 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.
(3) Any other information deemed necessary by the Commission.
(c) A report about the project prepared for any other purpose, or an application for approval prepared for submission to a member jurisdiction, may be accepted by the Commission provided the said report or application addresses all necessary items on the Commission's form or listed in this section, as appropriate.
Section 803.15 Notice of application.
(a) The project sponsor shall, no later than 10 days after submission of an application to the Commission, notify each municipality in which the project is located, the county planning agency of each county in which the project is located, and each contiguous property owner that an application has been submitted to the Commission. The project sponsor shall also publish at least once in a newspaper of general circulation serving the area in which the project is located, a notice of the submission of the application no later than 10 days after the date of submission. All notices required under this section shall contain a sufficient description of the project, its purpose, requested water withdrawal and consumptive use amounts, location and address, electronic mail address, and phone number of the Commission.
(b) The project sponsor shall provide the Commission with a copy of the United States Postal Service return receipt for the municipal notification under (a) and a proof of publication for the newspaper notice required under (a). 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, including a list of contiguous property owners notified under paragraph (a). Until these items are provided to the Commission, processing of the application will not proceed.
Section 803.16 Completeness of application.
(a) The Commission's staff shall review the application, and if necessary, request the project sponsor to provide any additional information that is deemed pertinent for proper evaluation of the project.
(b) An application deemed incomplete in accordance with Section 803.13(b) will be returned to the project sponsor, who shall have 30 days to cure the administrative deficiencies. An application deemed technically deficient may be returned to the project sponsor, who shall have a period of time prescribed by Commission staff to cure the technical deficiencies. Failure to cure either administrative or technical deficiencies within the prescribed time may result in termination of the application process and forfeiture of any fees submitted.
(c) The project sponsor has a duty to provide information reasonably necessary for the Commission's review of the application. If the project sponsor fails to respond to the Commission's request for additional information, the Commission may terminate the application process, close the file and so notify the project sponsor. The project sponsor may reapply without prejudice by submitting a new application and fee.
Subpart C--Standards for Review and Approval Section 803.20 Purpose of this subpart.
The purpose of this subpart is to set forth general standards that shall be used by the Commission to evaluate all projects subject to review and approval by the Commission pursuant to Section 803.4 and Section 803.5, and to establish special standards applicable to certain water withdrawals, consumptive uses and diversions. This subpart shall not be construed to limit the Commission's authority and scope of review. These standards are authorized under Sections 3.4(2), 3.4(8), 3.4(9), and 3.10 of the compact and are based upon, but not limited to, the goals, objectives, guidelines and criteria of the comprehensive plan.
Section 803.21 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.
(c) Disapprovals--other governmental jurisdictions.
(1) The Commission may suspend the review of any application under this part if the project is subject to the lawful jurisdiction of any member jurisdiction or any political subdivision thereof, and such member jurisdiction or political subdivision has disapproved or denied the project. Where such disapproval or denial is reversed on appeal, the appeal is final, and the project sponsor provides the Commission with a certified copy of the decision, the Commission shall resume its review of the application. Where, however, an application has been suspended hereunder for a period greater than three years, the Commission may terminate its review. Thereupon, the Commission shall notify the project sponsor of such termination and that the application fee paid by the project sponsor is forfeited. The project sponsor may reactivate the terminated docket by reapplying to the Commission, providing evidence of its receipt of all necessary governmental approvals and, at the discretion of the Commission, submitting new or updated information.
(2) The Commission may modify, suspend or revoke a previously granted approval if the project sponsor fails to obtain or maintain the approval of a member jurisdiction or political subdivision thereof having lawful jurisdiction over the project.
Section 803.22 Standards for consumptive uses of water.
(a) The project sponsors of all consumptive water uses subject to review and approval under Section 803.4 hereof shall comply with this section.
(b) Mitigation. All project sponsors whose consumptive use of water is subject to review and approval under Section 803.4 hereof shall mitigate such consumptive use. Except to the extent that the project involves the diversion of the waters out of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. Mitigation may be provided by one, or a combination of the following:
(1) During low flow periods as may be designated by the Commission for consumptive use mitigation.
(i) Reduce withdrawal from the approved source(s), in an amount equal to or greater than the project's total consumptive use, and withdraw water from alternative surface water storage or aquifers or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 90 days without impact to surface water flows.
(ii) Release water for flow augmentation, in an amount equal to the project's total consumptive use, from surface water storage or aquifers, or other underground storage chambers or facilities approved by the Commission, from which water can be withdrawn for a period of 90 days without impact to surface water flows.
(iii) Discontinue the project's consumptive use, except that reduction of project sponsor's consumptive use to less than 20,000 gpd during periods of low flow shall not constitute discontinuance.
(2) Use, as a source of consumptive use water, surface storage that is subject to maintenance of a conservation release acceptable to the Commission. In any case of failure to provide the specified conservation release, such project shall provide mitigation in accordance with paragraph (3), below for the calendar year in which such failure occurs, and the Commission will reevaluate the continued acceptability of the conservation release.
(3) Provide monetary payment to the Commission, for annual consumptive use, in an amount and manner prescribed by the Commission.
(4) Provide documentation to the Commission demonstrating that all requirements enumerated in the approval are satisfied within 90 days from the date of Commission action, unless specified otherwise. These items may include, but are not limited to:
(i) Installation of water conservation release structures.
(ii) Evaluation of water loss due to system leakage.
(iii) Installation of measuring devices.
(iv) Operational plans and/or designs.
(5) Implement other alternatives approved by the Commission.
(c) Determination of manner of mitigation. The Commission will, in its sole discretion, determine the acceptable manner of mitigation to be provided by project sponsors whose consumptive use of water is subject to review and approval. Such a determination will be made after considering the project's location, source characteristics, anticipated amount of consumptive use, proposed method of mitigation and their effects on the purposes set forth in Section 803.2 of this part, and any other pertinent factors. The Commission may modify, as appropriate, the manner of mitigation, including the magnitude and timing of any mitigating releases, required in a project approval.
(d) Quality of water released for mitigation. The physical, chemical and biological quality of water released for mitigation shall at all times meet the quality required for the purposes listed in Section 803.2, as applicable.
(e) Approval by rule for consumptive uses.
(1) Any project whose sole source of water for consumptive use is a public water supply withdrawal, may be approved under this subsection in accordance with the following, unless the Commission determines that the project cannot be adequately regulated under this approval by rule:
(i) Notification of Intent: No fewer than 90 days prior to construction or implementation of a project or increase above a previously approved quantity of consumptive use, the project sponsor shall:
(A) Submit a Notice of Intent (NOI) on forms prescribed by the Commission, and the applicable application fee, along with any required attachments.
(B) Send a copy of the NOI to the appropriate agencies of the member state, and to each municipality and county in which the project is located.
(ii) Within 10 days after submittal of an NOI under (i), submit to the Commission proof of publication in a newspaper of general circulation in the location of the project, a notice of intent to operate under this permit by rule, which contains a sufficient description of the project, its purposes and its location. This notice shall also contain the address, electronic mail address and telephone number of the Commission.
(2) Metering, daily use monitoring and quarterly reporting. The project sponsor shall comply with metering, daily use monitoring and quarterly reporting as specified in Section 803.30.
(3) Standard conditions. The standard conditions set forth in Section 803.21 above shall apply to projects approved by rule.
(4) Mitigation. The project sponsor shall comply with mitigation in accordance with Subsection 803.22(b)(2) or (b)(3).
(5) Compliance with other laws. The project sponsor shall obtain all necessary permits or approvals required for the project from other federal, state or local government agencies having jurisdiction over the project. The Commission reserves the right to modify, suspend or revoke any approval under this subsection if the project sponsor fails to obtain or maintain such approvals.
(6) The Commission will grant or deny approval to operate under this approval by rule and will notify the project sponsor of such determination, including the quantity of consumptive use approved.
(7) Approval by rule shall be effective upon written notification from the Commission to the project sponsor, shall expire 15 years from the date of such notification, shall be deemed to rescind any previous consumptive use approvals, and shall be nontransferable.
(8) The Commission may, on a case-by-case basis, revoke or suspend an approval by rule hereunder if it determines that the project sponsor is not in compliance with the approval by rule or to avoid adverse impacts to the water resources of the basin or otherwise protect public health, safety, welfare or water resources.
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