[Federal Register Volume 83, Number 9 (Friday, January 12, 2018)]
[Proposed Rules]
[Pages 1586-1596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00344]


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DELAWARE RIVER BASIN COMMISSION

18 CFR Parts 401 and 440


Administrative Manual and Special Regulations Regarding Natural 
Gas Development Activities; Additional Clarifying Amendments

AGENCY: Delaware River Basin Commission.

ACTION: Proposed rule; notice of public hearing.

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SUMMARY: The Commission proposes to amend its Special Regulations by 
the addition of a section on hydraulic fracturing in shale and other 
rock formations, including: The prohibition of high volume hydraulic 
fracturing in such formations; provisions related to water use for 
hydraulic fracturing; and provisions related to the management of 
produced water from hydraulic fracturing. The Commission also proposes 
to amend its Administrative Manual--Rules of Practice and Procedure by 
the addition of project review classifications and fees related to the 
management of produced water from hydraulic fracturing of hydrocarbon 
bearing rock formations. Minor amendments to the project review 
classifications unrelated to hydraulic fracturing are also proposed.

DATES: Written comments: Written comments will be accepted through 5 
p.m. on March 30, 2018.
    Public hearings:

1. January 23, 2018, 1:00 p.m. to 4:30 p.m., Waymart, Wayne County, PA
2. January 23, 2018, 6:00 p.m. to as late as 9:30 p.m., Waymart, Wayne 
County, PA
3. January 25, 2018, 1:00 p.m. to 4:30 p.m., Philadelphia, PA
4. January 25, 2018, 6:00 p.m. to as late as 9:30 p.m., Philadelphia, 
PA
5. February 22, 2018, 3 p.m. to as late as 7 p.m., Schnecksville, PA
6. March 6, 2018, 1:30 p.m. to 3:30 p.m., via telephone.

    Registration to attend hearings: Online registration to attend 
hearings will remain open until 5 p.m. the day prior to the hearing. 
(On-site registration will also be available at in-person venues.) 
Registrants will be afforded opportunities to request speaking time.

ADDRESSES: Written submissions: Written comments will be accepted 
through the Commission's online public comment collection system at: 
http://dockets.drbc.commentinput.com. To request an exception to use of 
the online system based on lack of access to the internet, please 
contact: Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 
08628.
    The hearing locations are:

<bullet> Ladore Camp, Retreat and Conference Center, 287 Owego 
Turnpike, Waymart, PA 18472 (Jan. 23)
<bullet> DoubleTree by Hilton Hotel Philadelphia Airport, 4509 Island 
Avenue, Philadelphia, PA 19153 (Jan. 25)
<bullet> LCCC Community Services Center, 4525 Education Park Drive, 
Schnecksville, PA 18078 (Feb. 22)
<bullet> By telephone 866-831-8713 (Mar. 6)

    Registration to attend hearings: To register to attend one or more 
public hearings, use the links posted on the Commission's website at 
http://www.nj.gov/drbc/meetings/proposed/notice_hydraulic-fracturing.html (strongly recommended). On-site registration will also 
be available at in-person hearing venues. Registrants will be afforded 
opportunities to request speaking time.
    See SUPPLEMENTARY INFORMATION for important details regarding the 
substance of requested comments, registration to attend public 
hearings, and other aspects of the public process.

FOR FURTHER INFORMATION CONTACT: Kate Schmidt, 609-477-7205, 
<a href="/cdn-cgi/l/email-protection#650e0411004b16060d080c011125011707064b0b0f4b020a13"><span class="__cf_email__" data-cfemail="b4dfd5c0d19ac7d7dcd9ddd0c0f4d0c6d6d79adade9ad3dbc2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The Delaware River Basin Commission (DRBC or 
``Commission'') is a regional interstate and federal agency formed by 
concurrent compact legislation of the four basin states and the federal 
government in 1961 to manage the water resources of the Delaware River 
Basin without regard to political boundaries. Its members are, ex 
officio, the governors of the basin states (Delaware, New Jersey, New 
York, and Pennsylvania) and the commander of the U.S. Army Corps of 
Engineers North Atlantic Division, who represents the federal 
government. Most actions of the Commission, including the adoption of 
rules to effectuate, apply and enforce the compact, require a majority 
vote of the Commission's five members.

Background

    On September 13, 2017, the Commissioners by a Resolution for the 
Minutes directed the Executive Director to prepare and publish for 
public comment a revised set of draft regulations, to include: ``(a) 
prohibitions relating to the production of natural gas utilizing 
horizontal drilling and hydraulic fracturing within the basin; (b) 
provisions for ensuring the safe and protective storage, treatment, 
disposal and/or discharge of wastewater within the basin associated 
with horizontal drilling and hydraulic fracturing for the production of 
natural gas where permitted; and (c) regulation of the inter-basin 
transfer of water and wastewater for purposes of natural gas 
development where permitted.''
    In accordance with the Commissioners' September 13 directive, the 
Commission is proposing amendments to its regulations and comprehensive 
plan to better provide for the planning, conservation, utilization, 
development, management and control of the basin's water resources in 
connection with the hydraulic fracturing of shale and other hydrocarbon 
bearing formations to produce oil and gas. The Commission proposes to 
prohibit high volume hydraulic fracturing within the basin to 
effectuate the comprehensive plan for the immediate and long-term 
development and use of the water resources of the basin, and to 
conserve, preserve and protect the quality and quantity of the basin's 
water resources for uses in accordance with the comprehensive plan.
    Through a series of policies and regulations establishing and 
amending its comprehensive plan, the Commission over the past half-
century has established in-stream water quality standards throughout 
the basin, prohibited degradation of groundwater, and provided special 
protection to the non-tidal segment of the Delaware River to preserve 
its exceptionally high water quality and water supply values. As the 
agency through which the five signatory parties to the Compact 
collectively manage the basin's water resources on a

[[Page 1587]]

regional basis, the Commission has taken these steps to meet public and 
private needs for, among other things, drinking water, recreation, 
power generation, and industrial activity, and to accommodate large 
out-of-basin diversions by the City of New York and the State of New 
Jersey that are authorized by the 1954 decree of the U.S. Supreme Court 
in the matter of New Jersey v. New York.\1\
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    \1\ See New Jersey v. New York, 347 U.S. 995 (1954).
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    Portions of Pennsylvania and New York comprising about 40 percent 
of the basin's geographic area are underlain by the Marcellus and Utica 
shales, geologic strata known to contain natural gas. Although the 
presence of commercially viable natural gas from these formations 
within the basin is not known, in regions of Pennsylvania west of the 
basin divide, oil and natural gas are extracted from the Marcellus and 
Utica formations by means of directional drilling and hydraulic 
fracturing using large volumes of water in a process referred to 
commonly in the region as ``high volume hydraulic fracturing'' 
(HVHF).\2\ The South Newark Basin formation, which underlies portions 
of Pennsylvania and New Jersey, may also contain oil and gas deposits 
capable of development by HVHF. All of the basin areas underlain by the 
Marcellus and Utica shales, with the exception of a small area of 
Schuylkill County, Pennsylvania, drain to waters the Commission has 
designated as ``Special Protection Waters'', due to their exceptionally 
high scenic, recreational, ecological, and/or water supply values. The 
Commission's water quality management policy objective for Special 
Protection Waters is ``that there be no measurable change [in the 
quality of these waters] except toward natural conditions.' '' \3\
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    \2\ See generally, New York State Department of Environmental 
Conservation, Final Supplemental Generic Environmental Impact 
Statement on the Oil, Gas and Solution Mining Regulatory Program--
Regulatory Program for Horizontal Drilling and High-Volume Hydraulic 
Fracturing to Develop the Marcellus Shale and Other Low-Permeability 
Gas Reservoirs, May 2015 (hereinafter, NYS Final SGEIS). Available 
at: http://www.dec.ny.gov/energy/75370.html.
    \3\ Delaware River Basin Water Code (hereinafter, ``Water 
Code'') (18 CFR part 410), Sec.  3.10.3 A.2.
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    During hydraulic fracturing, hydraulic fracturing fluid consisting 
primarily of water and recycled wastewater mixed with chemicals is 
injected through a well bore into the target rock formation under 
pressures great enough to fracture the rock. The fracturing fluid 
typically includes proppants (usually sand), which hold open the newly 
created fractures, allowing the gas to flow back through them and up 
the well to the surface. After a well is ``stimulated'' through 
hydraulic fracturing, much of the injected fracturing fluid, together 
with brines that were trapped within the target formation, is conveyed 
to the surface, where these fluids are collected and managed. The 
returned fluids, known as ``flowback'' and ``produced water,'' contain 
chemicals used in the fracturing mixture, as well as salts, metals, 
radionuclides, and hydrocarbons from the target rock formation. As 
discussed in greater detail below, in the Marcellus region in 
Pennsylvania, the median quantity of water required to stimulate a 
natural gas well exceeds 4 million gallons for each fracturing 
event.\4\ A single well may be fractured in multiple stages and/or 
multiple times,\5\ and as many as twelve wells may be installed on a 
single well pad.\6\ The volume of water and wastewater involved is thus 
significant.
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    \4\ James L. Richenderfer et al., Water Use Associated with 
Natural Gas Development: An Assessment of Activities Managed by the 
Susquehanna River Basin Commission--July 2008-December 2013, Pub. 
No. 299, April 2016 (hereinafter, ``SRBC NG Water Use 2016''), p.39. 
Available at: http://www.srbc.net/pubinfo/techdocs/NaturalGasReport/docs/SRBC_Full_Gas_Report_fs306397v1_20160408.pdf.
    \5\ United States Environmental Protection Agency, Hydraulic 
Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing 
Water Cycle on Drinking Water Resources in the United States, Dec. 
2016 (EPA-600-R-16-236Fa) (hereinafter, ``EPA HF Study 2016''). 
Exec. Sum., p. 23, n.3 (explaining that in a multi-stage hydraulic 
fracturing operation, specific parts of the well are isolated and 
hydraulically fractured until the total desired length of the well 
has been hydraulically fractured.) Available at: https://www.epa.gov/hfstudy. Also see, 18 CFR 806.3 (SRBC regulations for 
review and approval of projects, defining ``hydrocarbon development 
project'' as including ``all other activities and facilities 
associated with . . . the production, maintenance, operation, 
closure, plugging and restoration of [unconventional natural gas 
development] wells or drilling pad sites that require water for 
purposes including but not limited to, re-stimulation and/or re-
completion of such wells . . .'' (emphasis added)).
    \6\ See e.g., Alex K. Manda et al., Evolution of multi-well pad 
development and influence of well pads on environmental violations 
and wastewater volumes in the Marcellus shale (USA), J. Environ. 
Manage, Sep. 1, 2014, 142:36-45. Available at https://www.ncbi.nlm.nih.gov/pubmed/24814546.
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    The use of HVHF to extract oil and natural gas from tight shale 
formations presents risks, vulnerabilities and impacts to the quality 
and quantity of surface and ground water resources that have been 
documented extensively, including in comprehensive reports by the New 
York State Department of Environmental Conservation (NYSDEC) \7\ and 
the United States Environmental Protection Agency (EPA),\8\ among 
others. These reports identify the risks to water resources associated 
with each of the steps in the ``hydraulic fracturing water cycle,'' \9\ 
as summarized below. At times, these steps or portions thereof may be 
identified by the Commission as separate projects. In addition, an EPA 
technical background document describes industry processes, pollutants 
generated, risks, and available treatment technologies for produced 
water from oil and gas extraction.\10\ A significant number of data 
points in this document are provided for the Marcellus formation.
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    \7\ See NYS Final SGEIS 2016, supra n.1.
    \8\ See EPA HF Study 2016, supra n.5.
    \9\ The term ``hydraulic fracturing water cycle'' is used by the 
EPA to describe the five stages of this water-intensive activity: 
water acquisition, chemical mixing, well injection, produced water 
handling, wastewater disposal and reuse. EPA HF Study 2016, Exec. 
Sum., pp. 7-9. Extracted at: https://www.epa.gov/hfstudy/hydraulic-fracturing-water-cycle.
    \10\ See United States Environmental Protection Agency, 
Technical Development Document for the Effluent Limitations 
Guidelines and Standards for the Oil and Gas Extraction Point Source 
Category, June 2016 (EPA-820-R-16-003) (hereinafter ``EPA TDD 
2016''). Available at: https://www.epa.gov/sites/production/files/2016-06/documents/uog_oil-and-gas-extraction_tdd_2016.pdf.
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    Water acquisition. The acquisition of water for use in HVHF may 
result in modifications to groundwater levels, surface water levels, 
and stream flows. The Susquehanna River Basin Commission (SRBC) has 
reported that for the period 2008 through 2013 an average of 4.3 
million gallons of water were injected per fracturing event in natural 
gas wells within the Susquehanna Basin.\11\ During the same period, 84 
percent of injected water was ``fresh'' water from surface water and 
groundwater sources, and the remaining 16 percent was recycled produced 
water or flowback water.\12\ According to EPA, the median volume of 
water used per well fracturing event in Pennsylvania between January 
2011 and February 2013 was 4.18 million gallons.\13\ EPA further 
reports that in at least 10 percent of cases, the water use in 
Pennsylvania during the same period was over 6.6 million gallons per 
well.\14\ EPA has reported that in the Marcellus formation in 
Pennsylvania, 82 to 90 percent of the base fluid used for hydraulic 
fracturing is fresh water that is naturally occurring and that the 
remaining base fluids (10 to 18 percent) are reused and recycled 
produced water.\15\ Advances in horizontal drilling technology are 
leading to longer drill paths and the need for more fracturing fluid 
volumes for each path. According to SRBC, when

[[Page 1588]]

the industry began lengthening its lateral well bores in 2013, the 
average amount of water used per fracturing event increased to 
approximately 5.1 to 6.5 million gallons per fracturing event.\16\
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    \11\ SRBC NG Water Use 2016, p. 39.
    \12\ Id.
    \13\ EPA HF Study 2016, Exec. Sum., p. 11 (Table ES-1).
    \14\ Id.
    \15\ EPA TDD 2016, p. 43 (Table C-1).
    \16\ SRBC NG Water Use 2016, p. 43.
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    Withdrawals from surface and ground water in the amounts required 
for HVHF may adversely affect aquatic ecosystems and river channel and 
riparian resources downstream, including wetlands, and may diminish the 
quantity of water stored in an aquifer or a stream's capacity to 
assimilate pollutants. Because HVHF operations may significantly 
increase the volume of water withdrawn in a localized area, they may 
ultimately upset the balance between the demand on water resources and 
the availability of those resources for uses protected by the 
Commission's comprehensive plan, particularly during periods of low 
precipitation or drought.
    Consumptive use. In contrast with most domestic and commercial 
water use, most water used for HVHF is used ``consumptively,'' meaning 
it is not returned to the basin's usable ground or surface waters. 
According to the EPA, water accounts for 90 to 97 percent of all 
hydraulic fracturing fluids injected into a well for the purpose of 
extracting natural gas.\17\ EPA reports further that produced water, or 
water that flows from and through oil and gas wells to the surface as a 
by-product of oil and gas production over a ten-year operations period, 
makes up only 10 to 30 percent of the fluid injected. Accordingly, EPA 
estimates that 70 to 90 percent of the water used in high volume 
hydraulic fracturing is permanently removed from the water cycle.\18\ 
The SRBC's estimate is higher. SRBC reports that approximately 96 
percent of water withdrawn by the natural gas industry is consumptively 
used in the hydraulic fracturing process and that the balance of the 
water is consumptively used for other activities at the drilling pads, 
such as well drilling, preparation of drilling muds and grout, dust 
control, maintenance operations, and site reclamation.\19\ In contrast, 
the DRBC estimates that 90 percent of water withdrawn for domestic and 
commercial uses in the Delaware River Basin is returned to basin 
waters, either by infiltration into aquifers or by discharge to surface 
waters after treatment at a wastewater treatment facility.\20\
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    \17\ EPA HF Study 2016, Exec. Sum., p. 10.
    \18\ Id., p. 12 (Fig. ES-4(a)).
    \19\ SRBC NG Water Use 2016, p. 38.
    \20\ For comparison with climatically similar areas and the 
world, see Kimberly H. Schaffer and Donna L. Runkle, Consumptive 
Water-Use Coefficients for the Great Lakes Basin and Climatically 
Similar Areas, U.S. Geological Survey Scientific Investigations 
Report 2007-5197, p. 13 (Fig. 7). Available at: https://pubs.usgs.gov/sir/2007/5197/.
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    Chemical use. Although chemical additives generally make up the 
smallest proportion of the overall composition of hydraulic fracturing 
fluids, they pose a comparatively high risk to ground and surface water 
quality relative to proppants and base fluids.\21\ Additives, which can 
be a single chemical or a mixture of chemicals, are combined with the 
base fluid to change its properties, including, for example, to adjust 
pH, increase fluid thickness, reduce friction, or limit bacterial 
growth. The EPA has identified 1,084 chemicals reported to have been 
added to hydraulic fracturing fluids between 2005 and 2013.\22\ The 
choice of which additives to use depends on the characteristics of the 
targeted rock formation, and in some cases chemical information is 
considered Confidential Business Information and not disclosed by the 
fracturing operator.\23\ Based upon EPA's analysis, the combination of 
activities and factors more likely than others to result in more 
frequent or more severe impacts to water resources are spills during 
the management of hydraulic fracturing fluids and chemicals that result 
in large volumes or high concentrations of chemicals reaching 
groundwater resources.\24\ In May 2015, an EPA study compiled data on 
and characterized 457 hydraulic fracturing related spills that occurred 
between January 2006 and April 2012 in eleven states.\25\ The study 
attributed these to equipment failure, human error, failure of 
container integrity, and other causes, including but not limited to 
well communication, weather and vandalism.\26\ Storage, equipment, well 
or wellhead, hose or line, and ``unknown'' were among the identified 
sources.\27\ Spills can affect both surface and groundwater resources, 
both locally and regionally, within the host state and in adjoining 
states. Pollution from spills and from hydraulic fracturing has 
occurred in parts of Pennsylvania outside the basin where high volume 
hydraulic fracturing is occurring.\28\
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    \21\ EPA HF Study 2016, Exec. Sum., p.16.
    \22\ Id. A comprehensive review of chemical additives is 
provided in EPA TDD 2016, pp. 43-47 (Sec. 1.2).
    \23\ EPA HF Study 2016, p. 5-20 (Text Box 5-2).
    \24\ Id., Exec. Sum., p. 1.
    \25\ U.S. Environmental Protection Agency, Review of State and 
Industry Spill Data: Characterization of Hydraulic Fracturing-
Related Spills, May 2015 (EPA/601/R-14/001) (hereinafter ``EPA HF 
Spill Data 2015''), p. 1. Available at: https://www.epa.gov/hfstudy/review-state-and-industry-spill-data-characterization-hydraulic-fracturing-related-spills-1.
    \26\ EPA HF Study 2016, p. 5-42.
    \27\ Id.
    \28\ See generally, NYS Final SGEIS, Ch. X. Available at: http://www.dec.ny.gov/docs/materials_minerals_pdf/fsgeis2015ch10.pdf.
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    Well drilling and construction. Well drilling, well construction 
and well stimulation associated with HVHF also carry risks for 
groundwater and surface water resources. These risks include turbidity 
or other disruptions in local ground water formations and local 
groundwater wells, and contamination of aquifers by fluids pumped into 
or flowing from rock formations penetrated by the drilling of the well, 
particularly in the event of a compromised well casing. Typically, the 
developable shale formations are vertically separated from potential 
freshwater aquifers by thousands of feet of sandstones and shales of 
moderate to low permeability. High-volume hydraulic fracturing is 
engineered to target the prospective hydrocarbon-producing zone. 
Although the induced fractures create a pathway to the intended 
wellbore, they typically do not create a discharge mechanism or pathway 
beyond the fractured zone where none existed before. However, because 
the well bore penetrates groundwater aquifers and can be a pathway for 
fluid movement to existing drinking water and other groundwater 
resources, the mechanical integrity of the well is an important factor 
that affects the frequency and severity of potential water resource 
impacts from pollutants. A well with insufficient mechanical integrity 
can increase the risk of impacts and allow unintended fluid movement, 
including into drinking water aquifers. Such defects can arise from 
inadequate well design or construction or can develop over the well's 
lifetime, including during hydraulic fracturing.\29\ In particular, 
casing and cement can degrade over the life of the well because of 
exposure to corrosive chemicals, formation stresses, and operational 
stresses (e.g., pressure and temperature changes during hydraulic 
fracturing).\30\ Gas migration can also potentially occur as a result 
of poor well construction (i.e., casing and cement problems), or 
through existing abandoned wells or faults, which may be intersected 
inadvertently by a new oil or natural gas well. The EPA examined these 
types of pathways for the migration of hydraulic fracturing fluids and 
liquids and/or gases that exist in the subsurface to affect the quality 
of subsurface drinking water resources and

[[Page 1589]]

reported on failures and impacts to water resources in detail.\31\
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    \29\ EPA HF Study 2016, Exec. Sum., p. 24.
    \30\ Id.
    \31\ Id., pp. 23-29. Also see Main Report, Ch. 6.
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    Wastewater handling and disposal. ``Produced water'' (including 
``flowback'' water) refers to any water or fluid returned to the 
surface through the production well as a waste product of hydraulic 
fracturing. This material may be stored in tanks or other containers on 
the pad site before it is transferred for off-site treatment and/or 
disposal. The composition of produced water depends on the composition 
of the injected hydraulic fracturing fluid and the composition of the 
target formation. In the Marcellus region, produced water is generated 
in large quantities and often contains high concentrations of total 
dissolved solids (TDS or ``salts'') and constituents that may be 
harmful to human health and the environment. Produced water from HVHF 
in the Marcellus formation has been found to contain: \32\
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    \32\ See generally, EPA TDD 2016, pp. 59-81 (part C.3) for a 
comprehensive characterization of produced water that includes a 
significant number of data points for the Marcellus formation.
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    <bullet> Salts, including chloride, bromide, sulfate, sodium, 
magnesium, and calcium;
    <bullet> Metals, including barium, manganese, iron, and strontium;
    <bullet> Naturally-occurring organic compounds, including benzene, 
toluene, ethylbenzene, xylenes (BTEX), and oil and grease;
    <bullet> Radioactive materials, including radium; and
    <bullet> Hydraulic fracturing chemicals and their chemical 
transformation products.
    The disposal of produced water poses a significant risk to the 
water resources of the basin if the wastewater is not properly managed. 
The concentration of TDS in produced water can be high enough that if 
discharged untreated to surface water, the potential exists to 
adversely affect designated uses of surface water, including drinking 
water, aquatic life support, livestock watering, irrigation, and 
industrial use. Because produced water contains high TDS and dissolved 
inorganic constituents that most publicly owned treatment works and 
other municipal wastewater treatment facilities are not designed to 
remove, these constituents can be discharged untreated from such 
facilities; can disrupt treatment processes, for example by inhibiting 
biological treatment; can accumulate in biosolids (sewage sludge), 
limiting their beneficial use; and can facilitate the formation of 
harmful disinfection byproducts.\33\ Where produced water has been 
discharged to domestic wastewater treatment facilities in the past, 
elevated concentrations of chloride and bromide have been documented in 
the receiving waters.\34\ The discharge of bromide upstream of drinking 
water intakes has led in documented instances to the formation of 
carcinogenic disinfection by-products at drinking water utilities.\35\
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    \33\ United States Environmental Protection Agency, Effluent 
Limitations Guidelines and Standards for the Oil and Gas Extraction 
Point Source Category, Final Rule, 81 FR 41845, 41847c.
    \34\ William D. Burgos et al., Watershed-Scale Impacts from 
Surface Water Disposal of Oil and Gas Wastewater in Western 
Pennsylvania. Environ. Sci. Technol., 2017, 51 (15), pp. 8851-8860.
    Available at: http://pubs.acs.org/doi/abs/10.1021/acs.est.7b01696.
    \35\ Kimberly M. Parker et al., Enhanced formation of 
disinfection byproducts in shale gas wastewater-impacted drinking 
water supplies. Environ Sci Technol. 2014 Oct 7; 48 (19), pp. 11161-
9.
    Available at: http://pubs.acs.org/doi/abs/10.1021/es5028184.
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    The EPA since 1979 has required zero discharge of pollutants to 
waters of the United States from onshore oil and gas extraction 
wastewater. In 2016 EPA finalized a rule establishing pretreatment 
standards for discharges of wastewater from onshore unconventional oil 
and gas extraction facilities to municipal sewage treatment plants 
(also known as ``publicly owned treatment works'' or POTWs).\36\ The 
recent EPA rule will protect POTWs from disruptions in their operations 
that can be caused by these wastewaters. However, the rule does not 
extend to commercially owned treatment works that primarily treat 
domestic and commercial wastewater, and it does not address the 
discharge to POTWs of produced water that has been partially treated at 
centralized waste treatment facilities. Thus, significant risks 
associated with the treatment and discharge of produced water remain 
outside the scope of current federal regulations.
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    \36\ Id., pp. 41485-41857.
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    Siting and Landscapes. Certain water resources in the basin have 
high water resource value because of their excellent water quality or 
their exceptional ability to perform water supply, ecological, 
recreational or other water-related functions. The Commission has 
classified certain of these waters as Special Protection Waters through 
provisions of its Water Code incorporated in the comprehensive 
plan.\37\ The Water Code seeks to maintain or improve the condition of 
these water resources through regulatory requirements such as 
prevention of measurable change to existing water quality, evaluation 
of natural wastewater treatment system alternatives, conditions or 
limitations on wastewater treatment facilities and control of non-point 
sources.\38\
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    \37\ See Water Code, Sec.  3.10.3 A.2, 18 CFR part 410.
    \38\ Id.
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    Many high value water resources are associated with and dependent 
on their surrounding landscapes. Special Protection Waters are located 
in the upper portion of the basin where forested headwater areas and 
riparian buffers slow the rate and volume of stormwater runoff, 
replenish groundwater that serves as a source of drinking water and 
sustains stream flow, and control the introduction of pollutants into 
streams. These landscape features are particularly effective at 
controlling non-point source pollution that may occur following 
precipitation events.
    High volume hydraulic fracturing and the related alteration of 
landscapes required to support that activity pose risk to high value 
water resources. It is expected that practically all of the development 
and related disturbances from high volume hydraulic fracturing would 
occur in the drainage area of Special Protection Waters.\39\ 
Approximately 70 percent of the basin area underlain by the Marcellus 
and Utica shales (largely in the drainage area of Special Protection 
Waters) is forested. The average total disturbance associated with a 
single well pad, including associated access roads and utility 
corridors, is estimated at 7.7 acres.\40\ Off-site facilities such as 
gathering lines involve additional disturbances. These landscape 
changes will reduce forested areas and potentially vegetated buffers, 
increase non-point source pollution, diminish groundwater infiltration, 
and risk adversely affecting water quality and quantity in surface and 
groundwater. Because high volume hydraulic fracturing would most likely 
occur in headwater areas in the drainage area to Special Protection 
Waters, the risks of degrading water resources and impairing the 
effectuation of the comprehensive plan are of particular concern.
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    \39\ See DRBC map at: http://www.nj.gov/drbc/library/documents/maps/SPW-MarcellusShale.pdf.
    \40\ E.T. Slonecker et al., Landscape Consequences of Natural 
Gas Extraction in Allegheny and Susquehanna Counties, Pennsylvania, 
2004-2010; U.S. Department of the Interior U.S. Geological Survey, 
Open-File Report 2013-1025, p. 19 (Table 2) (converted to acres).
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    Uncertainty. The comprehensive EPA and New York DEC studies cited 
above report multiple instances of damage to water resources associated 
with all stages of the natural gas development process, and 
importantly, both sources emphasize the degree of uncertainty

[[Page 1590]]

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regarding potential future effects. The EPA report states:

    Cases of impacts were identified for all stages of the hydraulic 
fracturing water cycle. Identified impacts generally occurred near 
hydraulically fractured oil and gas production wells and ranged in 
severity, from temporary changes in water quality to contamination 
that made private drinking water wells unusable . . . However, 
significant data gaps and uncertainties in the available data 
prevented us from calculating or estimating the national frequency 
of impacts on drinking water resources from activities in the 
hydraulic fracturing water cycle. The data gaps and uncertainties 
described in this report also precluded a full characterization of 
the severity of impacts.\41\
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    \41\ EPA HF Study 2016, Exec. Sum., p. 2.

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    The New York State DEC study asserts:

. . . a broad range of experts from academia, industry, 
environmental organizations, municipalities, and the medical and 
public health professions commented and/or provided their analyses 
of high-volume hydraulic fracturing. The comments referenced an 
increasing number of ongoing scientific studies across a wide range 
of professional disciplines. These studies and expert comments 
evidence that significant uncertainty remains regarding the level of 
risk to public health and the environment that would result from 
permitting high-volume hydraulic fracturing in New York, and 
regarding the degree of effectiveness of proposed mitigation 
measures. In fact, the uncertainty regarding the potential 
significant adverse environmental and public health impacts has been 
growing over time.
. . . .
Potential significant adverse impacts on water resources exist with 
regard to potential degradation of drinking water supplies; impacts 
to surface and underground water resources due to large water 
withdrawals for high-volume hydraulic fracturing; cumulative 
impacts; stormwater runoff; surface spills, leaks and pit or surface 
impoundment failures; groundwater impacts associated with well 
drilling and construction and seismic activity; [and] waste 
disposal. . . .''\42\
---------------------------------------------------------------------------

    \42\ NYS Final SGEIS 2016, pp. 1, 13.

    Additional detail regarding damages to water resources and the 
risks, vulnerabilities and impacts to surface and ground water 
resources associated with HVHF can be found in the cited reports.

Related Statutory and Regulatory Provisions

    The proposed rules regarding hydraulic fracturing arise from 
clauses of the Commission's organic statute, the Delaware River Basin 
Compact (``Compact''),\43\ and from provisions of the Delaware River 
Basin Water Code, comprehensive plan and past determinations.
---------------------------------------------------------------------------

    \43\ United States Public Law 87-328, Approved Sept. 27, 1961, 
75 Statutes at Large 688; 53 Delaware Laws, Ch. 71, Approved May 26, 
1961; New Jersey Laws of 1961, Ch. 13, Approved May 1, 1961; New 
York Laws of 1961, Ch. 148, Approved March 17, 1961; Pennsylvania 
Acts of 1961, Act. No. 268, Approved July 7, 1961.
---------------------------------------------------------------------------

    The Compact recognizes the water and related resources of the 
Delaware River Basin as regional assets vested with local, state, and 
national interests, for which the signatory parties have shared 
responsibility.\44\ The Compact further recognizes that the economic 
development of the region as a whole and the health, safety, and 
general welfare of its population will remain vitally affected by 
management of these resources.\45\ Through the Compact, the signatory 
parties expressly provided that ``[t]he commission may assume 
jurisdiction to control future pollution and abate existing pollution 
in the waters of the basin, whenever it determines after investigation 
and public hearing upon due notice that the effectuation of the 
comprehensive plan so requires.'' \46\
---------------------------------------------------------------------------

    \44\ See Delaware River Basin Compact (hereinafter, 
``Compact''), Part I, 1st Whereas clause.
    \45\ See id., 8th Whereas clause.
    \46\ See id., Sec.  5.2.
---------------------------------------------------------------------------

    By regulation, the Commission has determined that the basin's 
waters are limited in quantity and that frequent drought warnings and 
drought declarations are needed due to limited water supply, storage 
and streamflow during dry periods. For these reasons, the Commission 
has adopted a policy of discouraging exportations of water from the 
basin.\47\ The Commission also has recognized that the basin's waters 
have limited assimilative capacity and in particular, limited capacity 
to accept conservative substances without significant impacts. On this 
basis and on grounds that the assimilative capacity of the basin's 
waters should be reserved for in-basin users, the Commission has 
adopted a policy of discouraging the importation of wastewater into the 
basin when it would significantly reduce the assimilative capacity of 
the receiving stream.\48\ No credit toward meeting wastewater treatment 
requirements is granted for wastewater imported into the basin when 
wasteload allocations have been established.\49\ The Commission in 2000 
determined by resolution that allocations of the waste assimilative 
capacity of the Delaware River Estuary are necessary to maintain stream 
quality objectives in Zones 2, 3, 4 and 5 for acute and chronic 
toxicity \50\ and in Zones 2 and 3 for the chemicals 1, 2 
dichloroethane and tetrachloroethene.\51\
---------------------------------------------------------------------------

    \47\ See Water Code, Sec.  2.30.2.
    \48\ See id.
    \49\ See Id., Sec.  2.30.6.
    \50\ See DRBC Resolution No. 2000-4, ``Be it resolved'' par. 4.
    \51\ See id., ``Be it resolved'' par. 1.
---------------------------------------------------------------------------

    The Commission's Special Protection Waters program establishes a 
water quality objective of no measurable change in existing water 
quality except towards natural conditions in waters that the Commission 
has designated as of exceptionally high scenic, recreational, 
ecological, and/or water supply value. The Commission has so designated 
virtually all of the non-tidal main stem, as well as the portions of 
tributaries to the main stem located within the Delaware Water Gap 
National Recreation Area.\52\
---------------------------------------------------------------------------

    \52\ See Water Code, Sec. Sec.  3.10.3. A.2. and A.2.e.
---------------------------------------------------------------------------

    The Commission has determined that the basin's underground water 
resources are to be ``used, conserved, developed, managed, and 
controlled in view of the need of present and future generations.'' To 
that end, it has provided by rule that interference, impairment, 
penetration, or artificial recharge of groundwater may be subject to 
the Commission's review.\53\ In accordance with Commission regulations, 
substances or properties in harmful or toxic concentrations or that 
produce color, taste, or odor of the water may not be ``permitted or 
induced by the activities of man to become ground water.'' \54\ The 
Commission has asserted by rule that it may establish requirements, 
conditions, or prohibitions that in its judgment are necessary to 
protect ground water quality.\55\
---------------------------------------------------------------------------

    \53\ Id., Sec.  2.20.6.
    \54\ See id., Sec.  3.40.5 B.1.
    \55\ See id., Sec.  3.40.5 B.3.
---------------------------------------------------------------------------

Summary of Proposed Rules

    Prohibition. Section 5.2 of the Compact authorizes the Commission 
to ``assume jurisdiction to control future pollution . . . in the 
waters of the basin, whenever it determines after investigation and 
public hearing upon due notice that the effectuation of the 
comprehensive plan so requires.'' It further authorizes the Commission 
to control pollution from industrial or other waste originating within 
a basin state so that the pollution does not ``injuriously affect the 
waters of the basin as contemplated by the comprehensive plan.'' The 
Commission may also adopt rules, regulations and standards to control 
future pollution. Considering the totality of the risks that HVHF poses 
to basin water resources, the Commission proposes in Section 440.3(b) 
of the draft rule to determine that controlling pollution by 
prohibiting high volume hydraulic fracturing in the

[[Page 1591]]

basin is required to effectuate the comprehensive plan, avoid injury to 
the waters of the basin as contemplated by the comprehensive plan and 
protect the public health and preserve the waters of the Basin for uses 
in accordance with the comprehensive plan.
    Water Exports. The transfer of surface water, groundwater, treated 
wastewater or mine drainage water, at any rate or volume, for 
utilization in hydraulic fracturing to produce oil and gas outside the 
Delaware River Basin is proposed to require Commission approval. 
Currently, exports of water from the basin of less than the daily 
average quantity of 100,000 gallons are deemed to have no substantial 
effect on the basin's water resources and are thus not reviewed by the 
Commission under section 3.8 of the Compact. The Commission has a 
longstanding policy of discouraging exportations of water on the 
grounds that the availability of water to meet in-basin needs is 
limited and low-flow and drought conditions are frequent. Unlike 
regulated withdrawals for domestic, commercial and industrial water 
supplies, withdrawals of large quantities of water for hydraulic 
fracturing to produce oil and gas have the potential, if unregulated, 
to occur through de-centralized, periodic and transient means and thus 
to adversely affect headwater streams and minimum flows of surface and 
groundwater, and to impair uses protected by the Commission's 
comprehensive plan. The proposed rule will make all proposed exports of 
water for oil and gas extraction subject to the requirement that 
alternatives involving no exportation be analyzed and that the water 
resource, economic and social impacts of the proposal be evaluated.
    Wastewater. As set forth above, the data available on produced 
water (including flowback) from hydraulically fractured wells in the 
Marcellus formation indicate that this waste stream is unlike other 
industrial and domestic waste streams treated and discharged in the 
Delaware River Basin, and that it poses significant risks to human 
health and the environment if improperly handled. Under the proposed 
rules, the ``produced water'' from the hydrocarbon-bearing strata 
during oil and gas extraction is broadly defined to include untreated 
produced water, diluted produced water, and produced water mixed with 
other wastes. The rule provides that this material may not be 
transferred to, treated by or discharged from or to a new or existing 
wastewater treatment facility located within the Delaware River Basin, 
at any volume or rate, except in accordance with an approval in the 
form of a docket issued by the Commission to the owner or operator of 
the wastewater treatment facility or in accordance with a state permit 
issued pursuant to a duly adopted administrative agreement between the 
Commission and the host state. The rule further provides that produced 
water may not be treated within the basin except at a centralized waste 
treatment facility (CWT) as that term is defined by the EPA in 40 CFR 
part 437 and may not be discharged within the basin without treatment 
at a CWT. Because current EPA regulations governing treatment by CWTs 
do not include limitations for pollutants commonly found in produced 
water, such as total dissolved solids, barium, bromide, radium and 
strontium,\56\ the proposed rule also places conditions on the 
treatment and discharge of wastewater or effluent resulting from the 
treatment of produced water by a CWT (``CWT wastewater'') before the 
CWT wastewater can be discharged to basin waters or to another 
treatment facility within the basin.
---------------------------------------------------------------------------

    \56\ United States Environmental Protection Agency, Final 2014 
Effluent Guidelines Program Plan, July 2015 (EPA-821-R-15-002), p. 
5-4 (sec. 5.3.2). Available at: https://www.epa.gov/sites/production/files/2015-09/documents/final-2014-effluent-guidelines-program-plan_july-2015.pdf. A detailed EPA study of the CWT industry 
focused on facilities accepting oil and gas extraction wastewaters 
is ongoing. See Preliminary 2016 Effluent Guidelines Program Plan, 
June 2016 (EPA-821-R-16-001), p. 6-1 (sec. 6.1).
---------------------------------------------------------------------------

    The Commission already has in place a policy to discourage the 
importation of wastewater into the basin due to the limited capacity of 
the basin's waters to assimilate waste. Proposals to import produced 
water and CWT wastewater into the basin will be subject to this policy 
and to the requirements that alternatives involving no importation be 
analyzed and that the water resource, economic and social impacts of 
the proposal be evaluated.
    Under the proposed rules, projects involving the treatment and 
discharge of produced water within the basin must meet the more 
stringent of applicable federal, state and DRBC requirements. 
Additional effluent limitations are proposed to apply to such projects 
for TDS, whole effluent toxicity, and a set of ``pollutants of 
concern'' identified on the basis of produced water characterizations 
provided by EPA in a 2016 technical document.\57\ The majority of the 
EPA's primary and secondary drinking water standards are also proposed 
as treatment levels for produced water discharged to a receiving 
waterbody designated for use as a public water supply. Treatability 
studies will be required to ensure that pollutant loads from natural 
gas wastewater are thoroughly characterized and that treatment ensures 
these pollutants are effectively reduced or eliminated, such that 
applicable effluent limits, stream quality objectives, protected uses, 
and in the case of Special Protection Waters, the ``no measurable 
change'' objective, are attained. Because the proposed rule requires 
treatment to ``background concentrations'' for pollutants of concern in 
many instances, the Commission is simultaneously publishing draft 
guidance on acceptable methods for determining background 
concentrations of these pollutants.
---------------------------------------------------------------------------

    \57\ See EPA TDD 2016, pp. 59-81 (Part C.3).
---------------------------------------------------------------------------

    Other changes. Revisions to the Commission's thresholds for review 
set forth at 18 CFR 401.35 are proposed to establish that certain 
activities relating to hydraulic fracturing in hydrocarbon-bearing 
formations are deemed to constitute projects having a substantial 
effect on water resources of the basin and are thus subject to review 
under Section 3.8 of the Compact. These include: the importation, 
treatment, or discharge to basin land or water of ``produced water'' as 
defined by the rule; and the exportation of water from the basin for 
uses related to hydraulic fracturing. Although certain additional 
activities and facilities on a well pad site could be separately 
identified by the Commission as projects, in light of the proposed 
prohibition, no changes to existing rules are proposed in this regard 
at this time. Minor changes are concurrently proposed to existing 
thresholds for the Commission's review of leachate discharges and 
wetlands.
    To provide for appropriate fees to cover the cost of reviews of new 
classes of projects deemed to require the Commission's approval, 
changes are also proposed to section 401.43 (regulatory program fees).

Executive Director Determinations

    The final regulations relating to natural gas development when 
adopted will supersede and replace the Executive Director's 
Determinations issued on May 19, 2009, June 14, 2010 and July 23, 2010.

Public Process

    Substance of comments: The Commission expressly seeks comment on 
the effects the proposed rules may have within the basin on: Water 
availability, the control and abatement of water pollution, economic 
development, the conservation and protection of drinking water 
supplies, the conservation and protection of aquatic life, the 
conservation and

[[Page 1592]]

protection of water quality in Special Protection Waters, and the 
protection, maintenance and improvement of water quantity and quality 
basinwide. Comment is also requested on whether use of base fluids 
other than water for HVHF is practical within the basin and if so, how 
it should be addressed in these rules, and on any alternatives to the 
proposed rules that the commenters would like the Commission to 
consider, as well as on draft guidance published simultaneously with 
the rules for determining background concentrations of certain 
pollutants. The Commission welcomes and will consider any other 
comments that concern the potential effects of the draft rules on the 
conservation, utilization, development, management and control of the 
water and related resources of the Delaware River Basin. Comments on 
matters not within this scope may not be considered.
    Non-digitized voluminous materials such as books, journals or 
collected letters/petitions will not be accepted. Digital submissions 
of these, as well as articles and websites, must be accompanied by a 
statement containing citations to the specific findings or conclusions 
the commenter wishes to reference.
    Submission of written comments. Written comments along with any 
attachments may be submitted through the Commission's web-based comment 
system (http://dockets.drbc.commentinput.com) until 5 p.m. on March 30, 
2018. All materials should be provided in searchable formats, 
preferably in .pdf searchable text. Notably, a picture scan of a 
document may not result in searchable text. Comments received through 
any method other than the designated on-line method, including via 
email, fax, postal/delivery services or hand delivery, will not be 
considered or included in the rulemaking record unless an express 
exception has been granted. Requests for exceptions to the web-based-
submissions-only policy based on lack of access to the web-based 
comment system may be addressed to: Commission Secretary, DRBC, P.O. 
Box 7360, West Trenton, NJ 08628.
    Public hearings. To reduce uncertainty on the part of attendees 
about whether they will have a seat and an opportunity to speak at a 
public hearing, and to provide for a safe and orderly process, the 
Commission is requiring registration online or on-site to attend each 
public hearing. Use of the online, web-based registration system is 
encouraged, as this system will track and publish in real time the 
available capacity for each hearing. Key dates, times and addresses are 
set forth at the top of this notice. Key elements of the procedure are 
as follows:
    <bullet> Online or on-site registration is required to attend each 
public hearing.
    <bullet> Online registration to attend will remain open until 5 
p.m. the day prior to each hearing.
    <bullet> On-site registration will be available at all in-person 
hearing venues.
    <bullet> Available capacity for each in-person hearing will be 
posted on the web-based registration system. When users access the 
system, they will see the number of seats still available or if the 
venue is at capacity.
    <bullet> If capacity has been reached for a specific hearing, 
online registrants will be placed on a waiting list.
    <bullet> Those who do not register to attend a hearing in advance 
are advised to check the availability of seats BEFORE planning travel 
to a hearing.
    <bullet> Public hearing registrants will be afforded opportunities 
to request speaking time.
    <bullet> If more people request to speak than time allows, those 
not assigned time will be placed on a waiting list.
    <bullet> If fewer people request to speak than time allows, 
additional opportunities to request time will be provided on or before 
the hearing date.
    <bullet> Elected government officials and their staff will have the 
opportunity to identify themselves when registering to attend a 
hearing.
    <bullet> Written and oral comment will receive equal consideration.
    The Commission appreciates the public's participation and input on 
this important matter. In order to provide as many individuals who wish 
to speak as possible with an opportunity to do so, each person will be 
limited to one time slot at one hearing location. Depending on the 
number who wish to be heard, speakers will be limited to two or three 
minutes. To ensure that scheduled public hearings meet the objectives 
of the Commission and the interested public in a safe and orderly 
process, it is essential that public hearing procedures are understood 
and followed. Participants are asked to review all DRBC public hearing 
procedures at: http://www.state.nj.us/drbc/library/documents/procedures_public-hearings050317.pdf. The Commission's policies related 
to speaker conduct, audience conduct, safety, security, signs, placards 
and banners will be in effect at these public hearings. The public is 
reminded that oral and written comments will receive the same 
consideration.
    More Information Available. Detailed and up-to-date information 
about the public process, including a version of the proposed rule text 
that shows proposed additions and deletions to 18 CFR part 401, draft 
guidance concerning the calculation of background pollutant 
concentrations (associated with proposed 18 CFR part 440) and links for 
online registration to attend each of the scheduled public hearings can 
be found on the DRBC website, drbc.net, at http://www.nj.gov/drbc/meetings/proposed/notice_hydraulic-fracturing.html.

List of Subjects

18 CFR Part 401

    Administrative practice and procedure, Penalties, Water pollution 
control, Water resources.

18 CFR Part 440

    Water pollution control, Water resources, Water supply, Waste 
treatment and disposal.

    For the reasons set forth in the preamble, the Delaware River Basin 
Commission proposes to amend title 18, chapter III of the Code of 
Federal Regulations as follows:

PART 401--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 401 continues to read as follows:

    Authority: Delaware River Basin Compact (75 Stat. 688), unless 
otherwise noted.

0
2. Amend Sec.  401.35 by:
0
a. Revising introductory text to paragraph (a) and paragraphs (a)(2), 
(4), (5), (15), (16) and (18);
0
b. Redesignating paragraph (a)(19) as (a)(20);
0
c. Adding a new paragraph (a)(19);
0
d. Removing paragraph (b)(14);
0
e. Redesignating paragraphs (b)(15) through (18) as (b)(14) through 
(17);
0
f. Revising newly redesignated paragraph (b)(14);
0
g. Revising newly redesignated paragraph (b)(17);
0
h. Adding new paragraphs (b)(18) and (19);
0
i. Revising paragraph (c);
0
j. Removing paragraph (d).
    The revisions and additions read as follows:


Sec.  401.35   Classification of projects for review under section 3.8 
of the Compact.

    (a) Except as the Commission may specially direct by notice to the 
project owner or sponsor, a project in any of the following 
classifications will be deemed not to have a substantial effect on the 
water resources of the Basin and is not required to be submitted under 
section 3.8 of the Compact:
* * * * *
    (2) A withdrawal from ground water when the daily average gross

[[Page 1593]]

withdrawal during any 30 consecutive day period does not exceed 100,000 
gallons;
* * * * *
    (4) Except as provided at paragraph (b)(18) of this section, the 
construction of new domestic sewage treatment facilities or alteration 
or addition to existing domestic sewage treatment facilities when the 
design capacity of such facilities is less than a daily average rate of 
10,000 gallons per day in the drainage area to Outstanding Basin Waters 
and Significant Resource Waters or less than 50,000 gallons per day 
elsewhere in the Basin; and all local sewage collector systems and 
improvements discharging into authorized trunk sewage systems;
    (5) Except as provided at paragraph (b)(18) of this section, the 
construction of new facilities or alteration or addition to existing 
facilities for the direct discharge to surface or ground waters of 
industrial wastewater having design capacity of less than 10,000 
gallons per day in the drainage area to Outstanding Basin Waters and 
Significant Resource Waters or less than 50,000 gallons per day 
elsewhere in the Basin; except where such wastewater contains toxic 
concentrations of waste materials;
* * * * *
    (15) Draining, filling or otherwise altering marshes or wetlands 
when the area affected is less than 25 acres; provided; however, that 
areas less than 25 acres shall be subject to Commission review and 
action where neither a state nor a federal level review and permit 
system is in effect;
    (16) Except as provided at paragraph (b)(19) of this section, the 
diversion or transfer of water from the Delaware River Basin 
(exportation) whenever the design capacity is less than a daily average 
rate of 100,000 gallons;
* * * * *
    (18) Except as provided at paragraph (b)(18) of this section, the 
diversion or transfer of wastewater into the Delaware River Basin 
(importation) whenever the design capacity is less than a daily average 
rate of 50,000 gallons; and
    (19) To the extent allowed in the basin (see prohibition at Sec.  
440.3(b) of this title), projects involving hydraulic fracturing, 
unless no state-level review and permit system is in effect;
* * * * *
    (b) * * *
    (14) Leachate treatment and disposal projects associated with 
landfills and solid waste disposal facilities in the basin;
* * * * *
    (17) Any other project that the Commission may specially direct by 
notice to the project sponsor or land owner as having a potential 
substantial water quality impact on waters classified as Special 
Protection Waters.
    (18) The importation, treatment, or discharge to basin land or 
water of ``produced water'' or CWT wastewater as those terms are 
defined in Sec.  440.2 of this chapter.
    (19) The transfer, diversion or exportation of water from the basin 
at any volume or rate for uses related to ``hydraulic fracturing'' as 
that term is defined in Sec.  440.2 of this chapter.
    (c) Regardless of whether expressly excluded from review by 
paragraph (a) of this section, any project or class of projects that in 
the view of the Commission could have a substantial effect on the water 
resources of the basin may, upon special notice to the project sponsor 
or landowner, be subject to the requirement for review under section 
3.8 of the Compact.
0
3. Amend Sec.  401.43 by:
0
a. Revising paragraphs (b)(1) introductory text, (b)(1)(iii) 
introductory text and (b)(2)(i);
0
b. Adding paragraph (b)(3)(v);
0
c. Revising paragraphs (b)(4)(iii) and (c);
0
d. Revising Tables 1 and 2.
    The revisions and additions read as follows:


Sec.  401.43   Regulatory program fees.

* * * * *
    (b) * * *
    (1) Application fee. Except as set forth in paragraph (b)(1)(iii) 
of this section, the application fee shall apply to:
* * * * *
    (iii) Exemptions. The application fee shall not apply to:
* * * * *
    (2) Annual monitoring and coordination fee. (i) Except as provided 
in paragraph (b)(2)(ii) of this section, an annual monitoring and 
coordination fee shall apply to each active water allocation or 
wastewater discharge approval issued pursuant to the Compact and 
implementing regulations, regardless of whether the approval was issued 
by the Commission in the form of a docket, permit or other instrument, 
or by a Signatory Party Agency under the One Permit Program rule (Sec.  
401.42).
    (3) * * *
    (v) A project involves treatability studies for the discharge of 
wastewater.
    (4) * * *
    (iii) Modification of a DRBC approval. Following Commission action 
on a project, each project revision or modification that the Executive 
Director deems substantial shall require an additional application fee 
calculated in accordance with paragraph (e) of this section and subject 
to an alternative review fee in accordance with paragraph (b)(3) of 
this section.
* * * * *
    (c) Indexed adjustment. On July 1 of every year, beginning July 1, 
2017, all fees established by this section will increase commensurate 
with any increase in the annual April 12-month Consumer Price Index 
(CPI) for Philadelphia, published by the U.S. Bureau of Labor 
Statistics during that year.\1\ In any year in which the April 12-month 
CPI for Philadelphia declines or shows no change, the application fee 
and annual monitoring and coordination fee will remain unchanged. 
Following any indexed adjustment made under this paragraph (c), a 
revised fee schedule will be published in the Federal Register by July 
1 and posted on the Commission's website. Interested parties may also 
obtain the fee schedule by contacting the Commission directly during 
business hours.
---------------------------------------------------------------------------

    \1\ Consumer Price Index--U/Series ID: CWURA102SA0/Not 
Seasonally Adjusted/Area: Philadelphia-Wilmington-Atlantic City, PA-
NJ-DE-MD/Item: All items/Base Period: 1982-84=100.
---------------------------------------------------------------------------

* * * * *

                                   Table 1 to Sec.   401.43--Application Fees
----------------------------------------------------------------------------------------------------------------
                  Project type                            Application fee                   Fee maximum
----------------------------------------------------------------------------------------------------------------
Water Allocation................................  $405 per million gallons/month  Greater of: $15,190 \1\ or
                                                   of allocation,\1\ not to        Alternative Review Fee.
                                                   exceed $15,190.\1\ Fee is
                                                   doubled for any portion to be
                                                   exported from the basin.
Wastewater Discharge............................  Private projects: $1,013.\1\    Alternative Review Fee.
                                                   Public projects: $506.\1\
                                                   Projects involving wastewater
                                                   treatability studies:
                                                   $5,000.\1\

[[Page 1594]]

 
Other...........................................  0.4% of project cost up to      Greater of: $75,951 \1\ or
                                                   $10,000,000 plus 0.12% of       Alternative Review Fee.
                                                   project cost above
                                                   $10,000,000 (if applicable),
                                                   not to exceed $75,951.\1\
----------------------------------------------------------------------------------------------------------------
\1\ Subject to an annual adjustment in accordance with paragraph (c) of this section.


    Table 2 to Sec.   401.43--Annual Monitoring and Coordination Fee
------------------------------------------------------------------------
              Annual fee                           Allocation
------------------------------------------------------------------------
                            Water Allocation
------------------------------------------------------------------------
$304 \1\.............................  <4.99 mgm.
$456 \1\.............................  5.00 to 49.99 mgm.
$658 \1\.............................  50.00 to 499.99 mgm.
$835 \1\.............................  500.00 to 9,999.99 mgm.
$1,013 \1\...........................  > or = to 10,000 mgm.
------------------------------------------------------------------------
                          Wastewater Discharge
------------------------------------------------------------------------
Annual fee                             Discharge design capacity
------------------------------------------------------------------------
$304 \1\.............................  <0.05 mgd.
$618 \1\.............................  0.05 to 0.99 mgd.
$830 \1\.............................  1 to 9.99 mgd.
$1,013 \1\...........................  > or = to 10 mgd.
------------------------------------------------------------------------
\1\ Subject to annual adjustment in accordance with paragraph (c) of
  this section.

* * * * *
0
4. Add Part 440 to Subchapter B--Special Regulations to read as 
follows:

PART 440--HYDRAULIC FRACTURING IN SHALE AND OTHER FORMATIONS

Sec.
440.1 Purpose, authority and relationship to other requirements.
440.2 Definitions.
440.3 High volume hydraulic fracturing (HVHF).
440.4 Exportation of water for hydraulic fracturing.
440.5 Produced water.

    Authority:  Delaware River Basin Compact (75 Stat. 688).


Sec.  440.1   Purpose, authority and relationship to other 
requirements.

    (a) Purpose. The purpose of this part is to protect and conserve 
the water resources of the Delaware River Basin. To effectuate this 
purpose, this section establishes standards, requirements, conditions 
and restrictions to prevent or reduce depletion and degradation of 
surface and groundwater resources and to promote sound practices of 
water resource management.
    (b) Authority. This part implements sections 1.5, 3.6(b), 3.8, 4.1, 
5.2, 7.1, 13.1 and 14.2(a) of the Delaware River Basin Compact.
    (c) Comprehensive plan. The Commission has determined that the 
provisions of this part are required for the immediate and long-range 
development and use of the water resources of the Basin and are 
therefore incorporated into the Commission's comprehensive plan.
    (d) Relationship to other Commission requirements. (1) The 
provisions of this part are in addition to all applicable requirements 
in other Commission regulations, dockets and permits.
    (2) Upon the effective date of this rule, the Executive Director 
Determinations dated May 19, 2009, June 14, 2010 and July 23, 2010, to 
the extent not already superseded by the Commission's Resolution dated 
December 8, 2010, are no longer operative.
    (e) Severability. The provisions of this part are severable. If any 
provision of this part or its application to any person or 
circumstances is held invalid, the invalidity will not affect other 
provisions or applications of this part, which can be given effect 
without the invalid provision or application.
    (f) Coordination and avoidance of duplication. In accordance with 
and pursuant to section 1.5 of the Delaware River Basin Compact, to the 
fullest extent it finds feasible and advantageous the Commission may 
enter into an Administrative Agreement (Agreement) with any basin state 
or the federal government to coordinate functions and eliminate 
unnecessary duplication of effort. Such Agreements will be designed to: 
Effectuate intergovernmental cooperation, minimize the efforts and 
duplication of state and Commission staff resources wherever possible, 
ensure compliance with Commission-approved requirements, enhance early 
notification of the general public and other interested parties 
regarding proposed activities in the basin, indicate where a host 
state's requirements satisfy the Commission's regulatory objectives and 
clarify the relationship and project review decision making processes 
of the states and the Commission for projects subject to review by the 
states under their state authorities and by the Commission under 
section 3.8 and articles 6, 7, 10 and 11 of the Compact.


Sec.  440.2   Definitions.

    For purposes of this part, the following terms and phrases have the 
meanings provided. Some definitions differ from those provided in 
regulations of one or more agencies of the Commission's member states 
and the federal government.
    Basin--The area of drainage into the Delaware River and its 
tributaries, including Delaware Bay.
    Centralized waste treatment facility (CWT)--As defined by EPA at 40 
CFR 437.2(c), any facility that treats (for disposal, recycling or 
recovery of material) any hazardous or non-hazardous industrial wastes, 
hazardous or non-hazardous industrial wastewater, and/or used material 
received from off-site. ``CWT facility'' includes both a facility that 
treats waste received exclusively from off-site and a facility that 
treats wastes generated on-site as well as waste received from off-
site.
    Commission--The Delaware River Basin Commission (DRBC) created and 
constituted by the Delaware River Basin Compact.
    Conservative substances--Pollutants that undergo no or minimal 
transformation or decay in a water body or groundwater, except by 
dilution.
    CWT wastewater--For purposes of this part, ``CWT wastewater'' means 
any wastewater or effluent resulting from the treatment of produced 
water by a CWT.
    Docket--A legal instrument issued by the Commission approving, or 
approving as modified, a project having a substantial effect on water 
resources of the basin. The approval may modify the project by imposing 
conditions to prevent the project from substantially impairing or 
conflicting with the Commission's comprehensive plan.
    Domestic wastewater--Liquid waste that contains pollutants produced 
by a domestic residence or residences or by a non-residential facility 
that generates wastewater with the same characteristics as residential 
wastewater.
    Executive Director--The Executive Director of the Delaware River 
Basin Commission.
    Flowback--Fluids returned to the surface through an oil or gas well 
once hydraulic fracturing pressure is released. Flowback can also refer 
to the stage of well completion in which fluids are returned to the 
surface through the well after fracturing is performed.
    Groundwater--Includes all water beneath the surface of the ground.

[[Page 1595]]

    High-volume hydraulic fracturing (HVHF)--Hydraulic fracturing using 
a combined total of 300,000 or more gallons of water during all stages 
in a well completion, whether the well is vertical or directional, 
including horizontal, and whether the water is fresh or recycled and 
regardless of the chemicals or other additives mixed with the water.
    Hydraulic fracturing--A technique used to stimulate the production 
of oil and natural gas from a well by injecting fracturing fluids down 
the wellbore under pressure to create and maintain induced fractures in 
the hydrocarbon-bearing rock of the target geologic formation.
    Fracturing fluid(s)--A mixture of water (whether fresh or recycled) 
and/or other fluids and chemicals or other additives, which are 
injected into the subsurface and which may include chemicals used to 
reduce friction, minimize biofouling of fractures, prevent corrosion of 
metal pipes or remove drilling mud damage within a wellbore area, and 
propping agents such as silica sand, which are deposited in the induced 
fractures.
    Person--Any natural person, corporation, partnership, association, 
company, trust, federal, state or local governmental unit, agency, or 
authority, or other entity, public or private.
    Pollutants--Any substance which when introduced into water 
resources, including surface water or groundwater, degrades natural or 
existing water quality, including but not limited to: Dredge spoils, 
solid waste, incinerator residue, sewage, garbage, sewage sludge, 
munitions, chemicals and chemical wastes, biological materials, 
radioactive materials, methane, heat, wrecked or discarded equipment, 
rock, sand, sediment, cellar dirt, and industrial, municipal or 
agricultural waste as well as any substance defined as a pollutant, 
contaminant or hazardous substance by any federal or state statute or 
regulation.
    Pollutants of concern--Conservative, radioactive, toxic or other 
substances that are potentially present in produced water, consisting 
of all parameters listed in the EPA Technical Development Document for 
the Effluent Limitations Guidelines and Standards for the Oil and Gas 
Extraction Point Source Category (June 2016), specifically all 
pollutants for produced water listed in Tables C-11, C-13, C-15, C-17, 
and C-19.
    Produced water--The water that flows out of an oil or gas well, 
typically including other fluids and pollutants and other substances 
from the hydrocarbon-bearing strata. Produced water may contain 
``flowback'' fluids, fracturing fluids and any chemicals injected 
during the stimulation process, formation water, and constituents 
leached from geologic formations. For purposes of Sec. Sec.  
401.35(b)(18) and 440.5, the term ``produced water'' encompasses 
untreated produced water, diluted produced water, and produced water 
mixed with other wastes.
    Wastewater treatment facility--Any facility treating and 
discharging wastewater.
    Water resource(s)--Water and related natural resources in, on, 
under, or above the ground, including related uses of land, which are 
subject to beneficial use, ownership or control within the hydrologic 
boundary of the Delaware River Basin.


Sec.  440.3   High volume hydraulic fracturing (HVHF)

    (a) Determination. The Commission has determined that high volume 
hydraulic fracturing poses significant, immediate and long-term risks 
to the development, conservation, utilization, management, and 
preservation of the water resources of the Delaware River Basin and to 
Special Protection Waters of the basin, considered by the Commission to 
have exceptionally high scenic, recreational, ecological, and/or water 
supply values. Controlling future pollution by prohibiting such 
activity in the basin is required to effectuate the comprehensive plan, 
avoid injury to the waters of the basin as contemplated by the 
comprehensive plan and protect the public health and preserve the 
waters of the basin for uses in accordance with the comprehensive plan.
    (b) Prohibition. High volume hydraulic fracturing in hydrocarbon 
bearing rock formations is prohibited within the Delaware River Basin.


Sec.  440.4   Exportation of water for hydraulic fracturing

    As set forth in section 2.30 of the Delaware River Basin Water Code 
(``Water Code'') (incorporated by reference at part 410 of this 
chapter), it is the policy of the Commission to discourage the 
exportation of water from the Delaware River Basin. Accordingly, the 
diversion, transfer or exportation of water from sources within the 
basin to support hydraulic fracturing outside the basin is discouraged. 
The transfer of surface water, groundwater, treated wastewater or mine 
drainage water, at any rate or volume, for utilization in hydraulic 
fracturing of hydrocarbon bearing rock formations outside the basin 
requires Commission approval in the form of a docket and shall be 
subject to the evaluation described by section 2.30.4 of the Water 
Code.


Sec.  440.5   Produced water.

    (a) Related Commission policies. (1) It is the policy of the 
Commission to discourage the importation of wastewater into the basin 
(see section 2.30.2 of the Delaware River Basin Water Code, 
incorporated by reference at part 410 of this chapter).
    (2) It is the policy of the Commission to give no credit toward 
meeting wastewater treatment requirements for wastewater imported into 
the Basin (see section 2.30.6 of the Delaware River Basin Water Code 
incorporated by reference at part 410 of this chapter).
    (3) The Commission has determined by Resolution No. 2000-4 that 
allocations of the waste assimilative capacity of the Delaware River 
Estuary are necessary to maintain stream quality objectives for acute 
toxicity and chronic toxicity in Water Quality Zones 2, 3, 4 and 5 and 
for 1,2 dichloroethane and tetrachloroethene in Water Quality Zones 2 
and 3.
    (4) It is the policy of the Commission that there be no measurable 
change in existing water quality except towards natural conditions in 
waters considered by the Commission to have exceptionally high scenic, 
recreational, ecological, and/or water supply values. Waters with 
exceptional values may be classified by the Commission as either 
Outstanding Basin Waters or Significant Resource Waters. (See section 
3.10.3.2 of the Delaware River Basin Water Code, incorporated by 
reference at part 410 of this chapter).
    (5) Effluents shall not create a menace to public health or safety 
at the point of discharge. (See section 3.10.4 of the Delaware River 
Basin Water Code, incorporated by reference at part 410 of this 
chapter).
    (6) The underground water resources of the Basin shall be used, 
conserved, developed, managed, and controlled in view of the needs of 
present and future generations, and in view of the resources available 
to them. To that end, interference, impairment, penetration, or 
artificial recharge shall be subject to review and evaluation under the 
Compact. (See section 2.20.6 of the Delaware River Basin Water Code, 
incorporated by reference at part 410 of this chapter).
    (b) Approval required. Produced water and CWT wastewater as defined 
in this part may not be imported into the Basin except by a new or 
existing wastewater treatment facility located within the Basin, and 
may not be transferred to, treated by or discharged from or to a new or 
existing wastewater treatment facility located within the Basin, at any 
volume or rate, except in accordance with an approval in the form

[[Page 1596]]

of a docket issued by the Commission to the owner or operator of the 
wastewater treatment facility pursuant to section 3.8 of the Compact or 
in accordance with a state permit issued pursuant to a duly adopted 
administrative agreement between the Commission and the host state.
    (c) Alternatives and impact assessment. Any project involving the 
importation of produced water or CWT wastewater into the Basin shall be 
subject to the requirement that alternatives involving no importation 
must be analyzed and the water resource, economic and social impacts of 
the project evaluated, as described in section 2.30.4 of the 
Commission's Water Code.
    (d) Compliance with existing rules. In addition to the requirements 
in this part, all discharges within the Basin of produced water and CWT 
wastewater as defined in this part must comply with applicable DRBC 
Water Quality Regulations (incorporated by reference at part 410 of 
this chapter), state regulations and federal regulations. If a conflict 
exists among the applicable regulations, the more stringent requirement 
shall apply to these discharges.
    (e) Treatment facilities. (1) Produced water as defined in this 
part:
    (i) May not be treated within the Basin except at a centralized 
waste treatment facility (CWT) as that term is defined by the U.S. 
Environmental Protection Agency in 40 CFR part 437 (to convert it to 
CWT wastewater); and pursuant to an approval issued in accordance with 
Sec.  440.5(b).
    (ii) May not be discharged within the basin without treatment at a 
CWT.
    (2) CWT wastewater as defined in this part may be discharged only:
    (i) Directly by the CWT pursuant to an approval issued in 
accordance with section 440.5(b); or
    (ii) Indirectly by a CWT to a wastewater treatment facility within 
the Basin (via sewer, truck or other means) pursuant to an approval 
issued in accordance with Sec.  440.5(b),
    (iii) Provided that the discharge meets the requirements of Sec.  
440.5(f) through (h).
    (f) Treatability studies. The Commission shall not issue any 
required docket or approval for the treatment of produced water or the 
discharge of CWT wastewater unless the project sponsor has identified 
each proposed source of the produced water or CWT wastewater and has 
submitted to the Commission a treatability study (or studies) prepared 
by a professional engineer licensed in the state(s) in which the 
treatment and discharge facilities are located, demonstrating that:
    (1) An analysis, characterization and quantification of all 
pollutants of concern, as that term is defined in Sec.  440.2, has been 
conducted and the results submitted to the Commission;
    (2) The acute and chronic toxicity of the waste, measured as Whole 
Effluent Toxicity (WET), have been evaluated;
    (3) The treatment technologies and applicable design criteria to be 
used to meet all requirements of Sec.  440.5(g) have been identified;
    (4) The produced water (or CWT wastewater) will not pass through or 
interfere with the facility's treatment process, and the resulting 
effluent will meet all applicable limits;
    (5) The classification, treatment and disposal of residuals from 
the facility, if any, will not be adversely affected; and
    (6) The discharge will not cause or contribute to an exceedance of 
applicable water quality criteria or stream quality objectives or 
impair the existing or protected use of the receiving water.
    (g) Additional effluent requirements. Except as provided in 
paragraph (h) of this section, the following requirements shall apply 
within the Basin to effluent resulting from the treatment of produced 
water or CWT wastewater. In any instance in which these requirements 
are deemed to conflict, the more stringent shall apply:
    (1) For total dissolved solids (TDS):
    (i) The effluent shall not exceed background or 500 mg/l, whichever 
is less,
    (ii) Provided, however, that in waters that drain to Delaware River 
Water Quality Zones 4 through 6, the resulting effluent shall not 
exceed 1,000 mg/l, or a concentration established by the Commission 
that is compatible with designated water uses and stream quality 
objectives.
    (iii) The Commission will publish guidance on acceptable methods 
for determining background TDS concentrations.
    (2) For waters for which the protected or designated uses include 
``public water supplies'' or ``drinking water'', the effluent shall not 
exceed the more stringent of EPA's or the host state's
    (i) Primary drinking water standards for inorganic chemicals, 
organic chemicals (excluding acrylamide and epichlorohydrin) and 
disinfection byproducts; and
    (ii) Secondary drinking water standards (excluding color, 
corrosivity, and odor).
    (3) For whole effluent toxicity (WET), the effluent shall not 
exceed: 0.3 toxic units (acute) and 1.0 toxic units (chronic).
    (4) For pollutants of concern as defined in section 440.2 of this 
part:
    (i) For waters that drain to Special Protection Waters, the 
effluent shall not exceed the background concentration of each 
pollutant in the receiving water.
    (ii) For waters that do not drain to Special Protection Waters:
    (A) If pollutant-specific numeric water quality criteria exist, the 
effluent concentration for the pollutant shall not exceed the numeric 
criteria.
    (B) If pollutant-specific numeric water quality criteria do not 
exist, the effluent shall not exceed the background concentration of 
the pollutant in the receiving water or cause an exceedance or 
violation of any existing narrative criteria.
    (C) The Commission will publish guidance on acceptable methods for 
determining background concentrations for pollutants of concern.
    (5) The Commission may require the discharger to perform such 
monitoring and reporting as the Commission deems necessary to ensure 
compliance with established numeric effluent limits and to support the 
development of additional numeric limits if needed.
    (h) Point of compliance. (1) The effluent limitations are to be met 
at the point of discharge to basin waters.
    (2) To ensure that all conditions, requirements and standards under 
this rule are met, the Commission may impose additional monitoring 
requirements or other conditions on any CWT within the basin that 
discharges CWT wastewater as defined in this part to another wastewater 
treatment facility in the basin.
    (3) A mixing zone may be considered for any pollutant for which a 
mixing zone is permitted in the Delaware River Estuary by the DRBC 
Water Quality Regulations (incorporated by reference at part 410 of 
this chapter).

    Dated: January 5, 2018.
Pamela M. Bush,
Commission Secretary/Assistant General Counsel.
[FR Doc. 2018-00344 Filed 1-11-18; 8:45 am]
 BILLING CODE 6360-01-P


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