Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations 52965 

SUSQUEHANNA RIVER BASIN 

COMMISSION 

18 CFR Part 806 

Review and Approval of Projects 

AGENCY: Susquehanna River Basin 

Commission. 

ACTION: Final rule. 

SUMMARY: This document contains rules 

that amend the regulations of the 

Susquehanna River Basin Commission 

(Commission) to update the 

requirements and standards for review 

of projects, amend the rules dealing 

with groundwater withdrawals, and 

revise the regulatory triggers related to 

grandfathered sources. 

DATES: This rule is effective on October 

1, 2021. 

ADDRESSES: Susquehanna River Basin 

Commission, 4423 N Front Street, 

Harrisburg, PA 17110–1788. 

FOR FURTHER INFORMATION CONTACT: 

Jason E. Oyler, Esq., General Counsel 

and Secretary, telephone: 717–238– 

0423, ext. 1312; fax: 717–238–2436; 

email: joyler@srbc.net. Also, for further 

information, including a comment and 

response document, visit the 

Commission’s website at http://

www.srbc.net. 

SUPPLEMENTARY INFORMATION: Notice of 

proposed rulemaking was published in 

the Federal Register on March 26, 2021; 

New York Register on April 14, 2021; 

Pennsylvania Bulletin on April 10, 

2021; and Maryland Register on April 9, 

2021. The Commission held two 

informational webinars explaining the 

proposed rulemaking on April 6 and 

April 14, 2021. The Commission 

convened a public hearing held by 

telephone on May 6, 2021. A written 

comment period was held open through 

May 17, 2021. Concurrent with the 

proposed rule, the Commission also 

released three draft groundwater related 

policies for public review and comment. 

Three comments were received during 

the comment period. One commenter 

appreciated the Commission’s proposal 

to eliminate some of the triggers for the 

loss of grandfathering under 

§ 806.4(a)(2). The commenter offered 

amended language for § 806.4(a)(2)(ii) 

and (iii) for the Commission’s 

consideration that would change the 

Commission’s intent and would limit 

any review of a grandfathered source 

increasing its quantity to only the 

increased withdrawal amount and not to 

the entire withdrawal. This would be a 

substantial change of the Commission’s 

current practice for the loss of 

grandfathering triggered by an increase 

in quantity from a grandfathered source. 

The Commission declines to make this 

change. The preamble to the proposed 

rule makes the Commission’s intent for 

the regulations clear, and the 

regulations reflect that intent. This 

rulemaking is intended to change the 

Commission’s overall policy regarding 

the number and scope of the triggers for 

losing grandfathering; however, it is not 

intended to provide a permanent 

exemption from eventual regulation of 

grandfathered sources or withdrawal 

quantities. 

A second commenter commended the 

Commission for acting upon the need 

for regulatory clarification, 

simplification, and recalibration of 

project review based on the scale and 

quantity (potential impact) of the 

project. The commenter specifically 

appreciated the proposed changes 

regarding the consideration of small and 

medium capacity sources; the 

elimination of potential triggers for loss 

of grandfathered source status; the 

addition of the Alternative 

Hydrogeologic Evaluation (AHE) 

process; and the further development of 

the minor modification process. In 

addition, the commenter suggested that 

the Commission create a redefined 

docket appeal process under 18 CFR 

808.2 and 808.3. This final aspect of the 

comment is outside the scope of the 

proposed rulemaking that was noticed 

and subjected to public comment. 

Therefore, the Commission cannot make 

any changes to these sections as a part 

of the final rule. 

A third commenter expressed 

concerns about the addition of 

§ 806.4(a)(3)(viii) and (ix) that would 

allow the diversion of drinking water or 

wastewater into or out of the basin 

without Commission approval for 

municipalities on the basin divide if the 

diversion occurs by or through a 

publicly or privately owned public 

water supplier or wastewater treatment 

works. The commenter opined that this 

change is not justified or supported by 

sufficient rationale. The Commission 

disagrees and declines to make the 

change requested. The regulation of 

into-basin diversions is focused on 

water quality coming into the Basin and 

the protection of the Basin’s water 

resources. Drinking water quality and 

wastewater quality are regulated solely 

by partner agencies and the Commission 

does not have water quality standards, 

in an effort to not duplicate partner 

agency regulatory authorities. The final 

regulation simply exempts, from 

Commission review, the movement 

across Basin boundaries of treated 

public water or wastewater that has 

been managed for water quality 

concerns by partner agencies. The final 

regulation does not pose any new 

threats or exacerbate existing threats to 

the quality of the Basin’s water 

resources. Withdrawals that supply outof-basin diversions by communities 

straddling the Basin divide will still be 

subject to the Commission’s review and 

application of its standards. Those 

standards, as for all withdrawals, are at 

18 CFR 806.23 and are equivalent to, if 

not broader, than those in § 806.24. 

Thus, the concerns raised in the 

comment are addressed by the 

Commission’s review standards to the 

withdrawal that supports the diversion. 

List of Subjects in 18 CFR Part 806 

Administrative practice and 

procedure, Water resources. 

Accordingly, for the reasons set forth 

in the preamble, the Susquehanna River 

Basin Commission amends 18 CFR part 

806 as follows: 

PART 806—REVIEW AND APPROVAL 

OF PROJECTS 

■ 1. The authority citation for part 806 

continues to read as follows: 

Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and 

15.2, Pub. L. 91–575, 84 Stat. 1509 et seq. 

■ 2. In § 806.3: 

■ a. Add in alphabetical order a 

definition for ‘‘Captured stormwater’’; 

■ b. Remove the definition of 

‘‘Hydrocarbon water storage facility’’; 

and 

■ c. Add in alphabetical order 

definitions for ‘‘Medium capacity 

source’’ and ‘‘Small capacity source’’. 

The additions read as follows: 

§ 806.3 Definitions. 

* * * * * 

Captured stormwater. Precipitation or 

stormwater collected on the drilling pad 

site, including well cellar water, waters 

from secondary containment, and water 

collected from post construction 

stormwater management features. 

* * * * * 

Medium capacity source. A ground or 

surface water source with a withdrawal 

of more than 20,000 but less than 

100,000 gallons per day over a 

consecutive 30 day-average. 

* * * * * 

Small capacity source. A ground or 

surface water source with a withdrawal 

of 20,000 gallons or less per day over a 

consecutive 30-day average. 

* * * * * 

■ 3. Revise § 806.4 to read as follows: 

§ 806.4 Projects requiring review and 

approval. 

(a) Except for activities relating to site 

evaluation, to aquifer testing under 

52966 Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations 

§ 806.12 or to those activities authorized 

under § 806.34, 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 of this part 

and shall be subject to the applicable 

standards in subpart C of this part. 

(1) Consumptive use of water. Any 

consumptive use project described in 

this paragraph (a)(1) shall require an 

application to be submitted in 

accordance with § 806.13, and shall be 

subject to the standards set forth in 

§ 806.22, and, to the extent that it 

involves a withdrawal from 

groundwater or surface water except a 

small capacity source, shall also be 

subject to the standards set forth in 

§ 806.23 as the Commission deems 

necessary. 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. Provided the commission 

determines that low flow augmentation 

projects sponsored by the commission’s 

member states provide sufficient 

mitigation for agricultural water use to 

meet the standards set forth in § 806.22, 

and except as otherwise provided in this 

paragraph (a)(1), agricultural water use 

projects shall not be subject to the 

requirements of this paragraph (a)(1). 

Notwithstanding the foregoing, an 

agricultural water use project involving 

a diversion of the waters of the basin 

shall be subject to such requirements 

unless the property, or contiguous 

parcels of property, upon which the 

agricultural water use project occurs is 

located at least partially within the 

basin. 

(i) Any project initiated on or after 

January 23, 1971, involving a 

consumptive water use of an average of 

20,000 gallons per day (gpd) or more in 

any consecutive 30-day period. 

(ii) 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. 

(iii) With respect to projects with precompact consumptive use: 

(A) Registered in accordance with 

subpart E of this part that increases its 

consumptive use by any amount over 

the quantity determined under § 806.44; 

(B) Increasing its consumptive use to 

an average of 20,000 gpd or more in any 

consecutive 30-day period; or 

(C) That failed to register its 

consumptive use in accordance with 

subpart E of this part. 

(iv) Any project, regardless of when 

initiated, involving a consumptive use 

of an average of 20,000 gpd or more in 

any consecutive 30-day period, and 

undergoing a change of ownership, 

unless such project satisfies the 

requirements of paragraph (b) of this 

section or the existing Commission 

approval for such project is transferred 

pursuant to § 806.6. 

(2) Withdrawals. Any project, 

including all of its sources, described in 

this paragraph (a)(2) shall require an 

application to be submitted in 

accordance with § 806.13, and shall be 

subject to the standards set forth in 

§§ 806.21 and 806.23. 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 (a)(2) 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, 

§ 806.5, or 18 CFR part 801. 

(i) Any project initiated on or after 

July 13, 1978 for groundwater or 

November 11, 1995 for surface water 

withdrawing a consecutive 30-day 

average of 100,000 gpd or more from a 

groundwater or surface water source, or 

any project initiated after January 1, 

2007 withdrawing a consecutive 30-day 

average of 100,000 gpd or more from a 

combination of sources. 

(ii) Any new source added to projects 

with previously approved withdrawals 

by the Commission. 

(iii) Any withdrawal increased above 

that amount which was previously 

approved by the Commission. 

(iv) With respect to projects with 

grandfathered withdrawals: 

(A) Registered in accordance with 

subpart E of this part that increases its 

withdrawal by any amount over the 

quantity determined under § 806.44; 

(B) Increasing its withdrawal 

individually or in combination from all 

sources to an average of 100,000 gpd or 

more in any consecutive 30-day period; 

or 

(C) That failed to register its 

withdrawals in accordance with subpart 

E of this part. 

(v) Any project, regardless of when 

initiated, 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, unless such project satisfies 

the requirements of paragraph (b) of this 

section or the existing Commission 

approval for such project is transferred 

pursuant to § 806.6. 

(3) Diversions. Except with respect to 

agricultural water use projects not 

subject to the requirements of paragraph 

(a)(1) of this section, the projects 

described in paragraphs (a)(3)(i) through 

(iv) of this section shall require an 

application to be submitted in 

accordance with § 806.13, and shall be 

subject to the standards set forth in 

§ 806.24. The project sponsors of out-ofbasin diversions shall also comply with 

all applicable requirements of this part 

relating to consumptive uses and 

withdrawals. The projects identified in 

paragraphs (a)(3)(v) and (vi) of this 

section shall be subject to regulation 

pursuant to § 806.22(f). 

(i) Any project initiated on or after 

January 23, 1971, involving the 

diversion of water into the basin by any 

amount, or involving a diversion of 

water out of the basin of an average of 

20,000 gallons of water per day or more 

in any consecutive 30-day period. 

(ii) With respect to diversions 

previously approved by the 

Commission, any project that will 

increase a diversion above the amount 

previously approved. 

(iii) With respect to diversions 

initiated prior to January 23, 1971, any 

project that will increase a diversion 

into the basin by any amount, or 

increase the diversion of water out of 

the basin by any amount. 

(iv) Any project, regardless of when 

initiated, involving the diversion of 

water into the basin by any amount or 

involving a diversion of water out of the 

basin by an average of 20,000 gallons of 

water per day or more in any 

consecutive 30-day period, and 

undergoing a change of ownership, 

unless such project satisfies the 

requirements of paragraph (b) of this 

section or the Commission approval for 

such project is transferred pursuant to 

§ 806.6. 

(v) The interbasin diversion of any 

flowback or production fluids, tophole 

water and captured stormwater from 

hydrocarbon development projects from 

one drilling pad site to another drilling 

pad site for use in hydrofracture 

stimulation, provided it is handled, 

transported and stored in compliance 

with all standards and requirements of 

the applicable member jurisdiction, 

shall not be subject to separate review 

and approval as a diversion under this 

paragraph if the generating or receiving 

pad site is subject to an Approval by 

Rule issued pursuant to § 806.22(f) and 

Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations 52967 

provided all monitoring and reporting 

requirements applicable to such 

approval are met. 

(vi) The diversion of flowback or 

production fluids, tophole water and 

captured stormwater from a 

hydrocarbon development project for 

which an Approval by Rule has been 

issued pursuant to § 806.22(f), to an outof-basin treatment or disposal facility 

authorized under separate governmental 

approval to accept flowback or 

production fluids, shall not be subject to 

separate review and approval as a 

diversion under this paragraph, 

provided all monitoring and reporting 

requirements applicable to the Approval 

by Rule are met and it is handled, 

transported and stored in compliance 

with all standards and requirements of 

the applicable member jurisdiction. 

(vii) The diversion of any flowback or 

production fluids, tophole water and 

captured stormwater from hydrocarbon 

development projects located outside 

the basin to an in-basin treatment or 

disposal facility authorized under 

separate government approval to accept 

flowback or production fluids, shall not 

be subject to separate review and 

approval as a diversion under this 

paragraph (a)(3), provided the fluids are 

handled, transported and stored in 

compliance with all standards and 

requirements of the applicable member 

jurisdiction. 

(viii) The diversion of drinking water 

and/or municipal wastewater out of the 

basin to a municipality on or straddling 

the basin divide if provided by or 

through a publicly or privately owned 

entity and regulated by the appropriate 

agency of the member jurisdiction shall 

not be subject to review and approval as 

a diversion under this paragraph (a)(3) 

of this section or as a consumptive use 

under paragraph (a)(1) of this section. 

(ix) The diversion of drinking water 

and/or municipal wastewater into the 

basin to a municipality if provided by 

or through a publicly or privately 

owned entity and regulated by the 

appropriate agency of the member 

jurisdiction shall not be subject to 

review and approval as a diversion 

under this paragraph (a)(3). 

(4) Crossing state boundaries. Any 

project on or crossing the boundary 

between two member states. 

(5) Significant effect. Any project in a 

member state having a significant effect 

on water resources in another member 

state. 

(6) Comprehensive plan. 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. 

(7) Determination. Any other project 

so determined by the commissioners or 

Executive Director pursuant to § 806.5 

or 18 CFR part 801. Such project 

sponsors shall be notified in writing by 

the Executive Director. 

(8) Natural gas. Any unconventional 

natural gas development project in the 

basin involving a withdrawal, diversion 

or consumptive use, regardless of the 

quantity. 

(9) General permit. Any project 

subject to coverage under a general 

permit issued under § 806.17. 

(b) Any project that did not require 

Commission approval prior to January 1, 

2007, and undergoing a change of 

ownership, shall be exempt from the 

requirements of paragraph (a)(1)(iv), 

(a)(2)(v), or (a)(3)(iv) of this section if it 

is a: 

(1) 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; or 

(2) Transfer of land used primarily for 

the raising of food, fiber or forage crops, 

trees, flowers, shrubs, turf products, 

livestock, or poultry, or for aquaculture, 

to the extent that, and for so long as, the 

project’s water use continues to be for 

such agricultural water use purposes. 

■ 4. Amend § 806.6 by revising 

paragraphs (a)(5) and (b) and by adding 

paragraph (d) to read as follows: 

§ 806.6 Transfer of approvals. 

(a) * * * 

(5) If the existing project has an 

unapproved withdrawal, consumptive 

use and/or diversion listed in paragraph 

(b) of this section, the transfer shall be 

conditioned to require the submission of 

a new application for review and 

approval of the unapproved withdrawal, 

consumptive use and/or diversion 

consistent with §§ 806.4 and 806.14 and 

paragraph (d) of this section. 

* * * * * 

(b) Previously unapproved activities 

associated with a project subject to 

transfer under paragraph (a) of this 

section include: 

(1) The project has an associated precompact consumptive water use that has 

not had mitigation approved by the 

Commission. 

(2) The project has an associated 

diversion that was initiated prior to 

January 23, 1971. 

(3) Projects registered under subpart E 

of this part. 

* * * * * 

(d) Any unapproved activities 

associated with a transferred project 

shall be subject to the following: 

(1) The transfer approval shall be 

conditioned to include monitoring 

requirements under § 806.30 for all 

previously unapproved sources and 

activities. 

(2) The transfer approval may include 

any other conditions consistent with 

this part deemed necessary by the 

Executive Director. 

(3) The approved transfer will act as 

the unapproved activity’s temporary 

approval for a period of five years, at 

which point, the project sponsor shall 

submit an application for review and 

approval consistent with subpart B of 

this part. 

(4) The Executive Director may 

require hydrogeologic evaluation under 

§ 806.12 and/or formal review and 

approval of any of the previously 

unapproved sources sooner if those 

sources show a substantial likelihood of 

environmental harm, interference with 

other water users or water availability 

issues. 

■ 5. Revise § 806.12 to read as follows: 

§ 806.12 Hydrogeologic evaluation. 

Evaluation of groundwater 

withdrawal projects requires a 

hydrogeologic evaluation, which may be 

an aquifer test in accordance with an 

approved plan or an alternative 

hydrogeologic evaluation in 

conformance with this section. 

(a) Prior to submission of an 

application pursuant to § 806.13, a 

project sponsor seeking approval for a 

new groundwater withdrawal, a renewal 

of an expiring groundwater withdrawal, 

or an increase of a groundwater 

withdrawal shall perform an aquifer 

test. 

(b) Unless an alternative 

hydrogeologic evaluation method is 

approved, the project sponsor shall 

prepare an aquifer test plan for prior 

review and approval by Commission 

staff before testing is undertaken. Such 

plan shall include a groundwater 

availability analysis to determine the 

availability of water during a 1-in-10- 

year recurrence interval. 

(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. 

(e) The project sponsor may be 

required, at its expense, to provide 

52968 Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations 

temporary water supply if an aquifer 

test results in interference with an 

existing water use. 

(f) Review of submittals under this 

section may be terminated by the 

Commission in accordance with the 

procedures set forth in § 806.16. 

(g) This section does not apply to 

withdrawals related to mine dewatering, 

water resources remediation or AMD 

facilities, provided the activity is 

governed by another regulatory agency. 

(h) Sources undergoing renewal that 

can provide an interpretative 

hydrogeologic report that documents the 

results of a Commission approved 

aquifer test or documentation of an 

approved prior waiver by the 

Commission may meet the requirements 

of this section for that previously 

approved groundwater source. 

(i) In lieu of completing a 

Commission-approved aquifer test, the 

project sponsor may submit an 

Alternative Hydrogeologic Evaluation 

(AHE) that provides supporting 

information equivalent to that which 

would be obtained from completing an 

approved aquifer test under paragraph 

(a) of this section. This supporting 

information includes, but is not limited 

to, prior aquifer testing data, the 

withdrawal setting and location, 

existing site specific operational data, 

and prior Commission approved 

waivers of aquifer testing requirements. 

Commission staff may approve an AHE 

for a project or require completion of a 

Commission approved aquifer test in 

accordance with paragraph (a) of this 

section. 

(j) This section does not apply to 

withdrawals from a small capacity 

source, unless otherwise determined by 

the Executive Director. 

■ 6. Amend § 806.14 by: 

■ a. Revising paragraphs (a)(2) and (3), 

(b)(1) and (2), and (c)(2), (3), and (5); 

■ b. Adding paragraphs (c)(10) and (11); 

and 

■ c. Revising paragraph (d). 

The revisions and additions read as 

follows: 

§ 806.14 Contents of application. 

(a) * * * 

(2) Project location, including latitude 

and longitude coordinates in decimal 

degrees accurate to within 10 meters, 

the project location displayed on a map, 

and evidence of legal access to the 

property upon which the project is 

proposed. 

(3) Project description, including: 

purpose, proposed quantity to be 

withdrawn or consumed, if applicable, 

and description of all sources, 

consumptive uses and diversions 

related to the project. 

* * * * * 

(b) * * * 

(1) Surface water. (i) Water use and 

availability. 

(ii) Project setting, including surface 

water characteristics, identification of 

wetlands, and site development 

considerations. 

(iii) Description and design of intake 

structure. 

(iv) Anticipated impact of the 

proposed project on local flood risk, 

recreational uses, fish and wildlife and 

natural environment features. 

(v) For new projects and major 

modifications to increase a withdrawal, 

alternatives analysis for a withdrawal 

proposed in settings with a drainage 

area of 50 miles square or less, or in a 

water with exceptional water quality, or 

as required by the Commission. 

(2) Groundwater. (i) With the 

exception other projects which are 

addressed in paragraph (b)(6) of this 

section, the project sponsor shall 

demonstrate that requirements of 

§ 806.12 have been met by providing 

one of the following: 

(A) An interpretive report that 

includes the results of a Commission 

approved aquifer test and an updated 

groundwater availability estimate if 

changed from the aquifer test plan, 

(B) An approved AHE, 

(C) A prior determination by the 

Commission staff under § 806.12(h) that 

the intent and requirements of § 806.12 

have been met along with an updated 

groundwater availability estimate. 

(ii) Water use and availability. 

(iii) Project setting, including nearby 

surface water features. 

(iv) Groundwater elevation 

monitoring plan for all production 

wells. 

(v) Alternatives analysis as required 

by the Commission. 

* * * * * 

(c) * * * 

(2) Project location, including latitude 

and longitude coordinates in decimal 

degrees accurate to within 10 meters, 

the project location displayed on map, 

and evidence of legal access to the 

property upon which the project is 

located. 

(3) Project description, to include, but 

not be limited to: Purpose, proposed 

quantity to be withdrawn or consumed 

if applicable, description of all sources, 

consumptive uses and diversions 

related to the project and any proposed 

project modifications. 

* * * * * 

(5) An as-built and approved metering 

plan that conforms to § 806.30. 

* * * * * 

(10) Changes to the facility design. 

(11) Any proposed changes to the 

previously authorized purpose. 

(d) Additional information is required 

for the following applications for 

renewal of expiring approved projects. 

(1) Surface water. (i) Description and 

as-built of intake structure. 

(ii) For renewals seeking to increase a 

withdrawal, alternatives analysis for a 

withdrawal proposed in settings with a 

drainage area of 50 miles square or less, 

or in a waterway with exceptional water 

quality, or as required by the 

Commission. 

(2) Groundwater. (i) The project 

sponsor shall demonstrate that 

requirements of § 806.12 have been met 

by providing one of the following: 

(A) Provide an interpretive report that 

includes the results of a Commission 

approved aquifer test and an updated 

GW availability estimate if changed 

from the aquifer test plan; 

(B) An approved AHE; or 

(C) A prior determination by the 

Commission staff under § 806.12(h) that 

the intent and requirements of § 806.12 

have been met. 

(ii) An interpretative report providing 

analysis and comparison of current and 

historic water withdrawal and 

groundwater elevation data with 

previously completed materials to 

demonstrate satisfaction of § 806.12, 

which may include a hydrogeologic 

report from previous aquifer testing, an 

approved AHE or prior determination of 

waiver of aquifer testing. 

(iii) Current groundwater availability 

analysis assessing the availability of 

water during a 1-in-10 year drought 

recurrence interval under the existing 

conditions within the recharge area and 

predicted for term of renewal (i.e., other 

users, discharges, and land development 

within the groundwater recharge area). 

(iv) Groundwater elevation 

monitoring plan for all production 

wells. 

(v) Alternatives analysis as required 

by the Commission. 

(3) Consumptive use. (i) Consumptive 

use calculations. 

(ii) Mitigation plan, including method 

of consumptive use mitigation. 

(4) Into basin diversion. (i) Provide 

the necessary information to 

demonstrate that the project will 

continue to meet the standards in 

§ 806.24(c). 

(ii) Identification of the source and 

current water quality characteristics of 

the water to be diverted. 

(5) Out of basin diversion. (i) Provide 

the necessary information to 

demonstrate that the project will 

continue to meet the standards in 

§ 806.24(b). 

Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations 52969 

(6) Other projects. Other projects, 

including without limitation, mine 

dewatering, water resources remediation 

projects, and AMD facilities that qualify 

as a withdrawal. 

(i) In lieu of a hydrogeologic 

evaluation, a copy of approved report(s) 

prepared for any other purpose or as 

required by other governmental 

regulatory agencies that provides a 

demonstration of the hydrogeologic 

and/or hydrologic effects and limits of 

said effects due to operation of the 

project and effects on local water 

availability. 

(ii) Any data or reports that 

demonstrate effects of the project are 

consistent with those reports provided 

in paragraph (d)(6)(i) of this section. 

(iii) Demonstration of continued need 

for expiring approved water source and 

quantity. 

* * * * * 

■ 7. Revise § 806.15 to read as follows: 

§ 806.15 Notice of application. 

(a) Except with respect to paragraphs 

(e), (f), and (g) of this section, any 

project sponsor submitting an 

application to the Commission shall 

provide notice thereof to the appropriate 

agency of the member State, each 

municipality in which the project is 

located, and the county and the 

appropriate county agencies in which 

the project is located. The project 

sponsor shall also publish notice of 

submission of the application at least 

once in a newspaper of general 

circulation serving the area in which the 

project is located. The project sponsor 

shall also meet any of the notice 

requirements set forth in paragraphs (b) 

through (d) of this section, if applicable. 

All notices required under this section 

shall be provided or published no later 

than 20 days after submission of the 

application to the Commission and shall 

be in a form and manner as prescribed 

by the Commission. 

(b) For withdrawal applications 

submitted pursuant to § 806.4(a)(2) for 

new projects, major modifications, and 

renewals requesting an increase, the 

project sponsor shall also provide the 

notice required under paragraph (a) of 

this section to each property owner 

listed on the tax assessment rolls of the 

county in which such property is 

located and identified as follows: 

(1) For groundwater withdrawal 

applications, the owner of any property 

that is located within a one-quarter mile 

radius of the proposed withdrawal 

location. 

(2) For surface water withdrawal 

applications, the owner of any property 

that is riparian or littoral to the body of 

water from which the proposed 

withdrawal will be taken and is within 

a one-half mile radius of the proposed 

withdrawal location. 

(3) For groundwater withdrawal 

applications, the Commission or 

Executive Director may allow 

notification of property owners through 

alternate methods where the property of 

such property owner is served by a 

public water supply. 

(c) For projects involving a diversion 

of water out of the basin, the project 

sponsor shall also publish a notice of 

the submission of its application at least 

once in a newspaper of general 

circulation serving the area outside the 

basin where the project proposing to use 

the diverted water is located. For 

projects involving a diversion of water 

into the basin, the project sponsor shall 

also publish a notice of the submission 

of its application at least once in a 

newspaper of general circulation serving 

the area outside the basin where the 

withdrawal of water proposed for 

diversion is located. 

(d) The project sponsor shall provide 

the Commission with a copy of the 

United States Postal Service return 

receipt or the verified return receipt 

from a comparable delivery service for 

the notifications to agencies of member 

States, municipalities, counties and 

appropriate county agencies required 

under this section. The project sponsor 

shall also provide certification on a form 

provided by the Commission that it has 

published the newspaper notice(s) 

required by this section and made the 

landowner notifications as required 

under paragraph (b) of this section, if 

applicable. The project sponsor shall 

maintain all proofs of publication and 

records of notices sent under this 

section for the duration of the approval 

related to such notices. 

(e) For Notices of Intent (NOI) seeking 

coverage under a general permit, the 

project sponsor shall provide notice of 

the NOI to the appropriate agency of the 

member State and each municipality 

and county and appropriate county 

agencies in which the project is located 

and any additional notice identified in 

the general permit. 

(f) For applications for minor 

modifications and approvals by rule 

under § 806.22(e), the project sponsor 

shall provide notice of the application 

to the appropriate agency of the member 

State and each municipality and county 

and appropriate county agencies in the 

which the project is located. 

(g) For NOIs seeking an approval 

pursuant to § 806.22(f), the project 

sponsor shall provide notice of the 

application to the appropriate agency of 

the member State, each municipality, 

county and appropriate county agencies, 

and the owner of the property on or in 

which the drilling pad site is located. 

For requests for approval submitted 

under § 806.22(f)(13), the project 

sponsor shall provide notice of the 

application to the appropriate agency of 

the member State, each municipality, 

county and appropriate county agencies 

in which the public water supply is 

located. 

■ 8. Amend § 806.18 by revising 

paragraph (c) to read as follows: 

§ 806.18 Approval modifications. 

* * * * * 

(c) Minor modifications. The 

following are minor modifications: 

(1) Correction of typographical or 

other errors; 

(2) Changes to monitoring or metering 

conditions; 

(3) Addition, amendment or removal 

of sources of water for consumptive use 

or project descriptions; 

(4) Changes to the authorized water 

uses; 

(5) Changes to conditions setting a 

schedule for developing, implementing, 

and/or reporting on monitoring, data 

collection and analyses; 

(6) Changes to the design and minor 

changes to the location of intakes; 

(7) Increases to total system limits that 

were established based on the projected 

demand of the project; and 

(8) Modifications of extraction well 

network used for groundwater 

remediation systems. 

(9) Adjustments to a term of an 

approval to align the approval with a 

member jurisdiction approval or another 

docket approval by the Commission. 

(10) Changes to the method of 

consumptive use mitigation to payment 

of the mitigation fee, providing for 

discontinuance, use of storage or an 

adequate conservation release in 

accordance with a previous Commission 

determination. 

(11) Addition of stormwater as a 

source of consumptive use, including an 

increase to the total consumptive use 

related to the stormwater use. 

(12) Extension of the date of 

commencement of a withdrawal, 

diversion or consumptive use 

established under § 806.31(b). 

* * * * * 

■ 9. Amend § 806.22 by revising 

paragraphs (e)(6) and (8) and (f)(4) and 

(11) through (13), and removing and 

reserving paragraph (f)(14). 

The revisions read as follows: 

§ 806.22 Standards for consumptive use of 

water. 

* * * * * 

52970 Federal Register / Vol. 86, No. 183 / Friday, September 24, 2021 / Rules and Regulations 

(e) * * * 

(6) Mitigation. The project sponsor 

shall comply with mitigation in 

accordance with paragraph (b)(1)(iii) or 

(b)(2) or (3) of this section. 

* * * * * 

(8) Decision. The Executive Director 

may grant, deny, suspend, revoke, 

modify or condition an approval to 

operate under this approval by rule, or 

renew an existing approval by rule 

previously granted hereunder, and will 

notify the project sponsor of such 

determination, including the quantity of 

consumptive use approved. Use of small 

capacity sources or sources used only 

for supply of potable water may be 

appropriately included as a part of this 

approval by rule in the discretion of the 

Executive Director. 

* * * * * 

(f) * * * 

(4) The project sponsor shall comply 

with metering, daily use monitoring and 

quarterly reporting as specified in 

§ 806.30, or as otherwise required by the 

approval by rule. The project sponsor 

shall submit a post-hydrofracture report 

in a form and manner as prescribed by 

the Commission. 

* * * * * 

(11) In addition to water sources 

approved for use by the project sponsor 

pursuant to § 806.4 or this section, for 

unconventional natural gas 

development or hydrocarbon 

development, whichever is applicable, a 

project sponsor issued an approval by 

rule pursuant to paragraph (f)(9) of this 

section may utilize any of the following 

water sources at the drilling pad site, 

subject to such monitoring and 

reporting requirements as the 

Commission may prescribe: 

(i) Tophole water encountered during 

the drilling process, provided it is used 

only for drilling or hydrofracture 

stimulation. 

(ii) Captured stormwater, provided it 

is used only for drilling or hydrofracture 

stimulation. 

(iii) Drilling fluids, formation fluids, 

flowback or production fluids obtained 

from a drilling pad site, production well 

site or hydrocarbon water storage 

facility, provided it is used only for 

hydrofracture stimulation, and is 

handled, transported and stored in 

compliance with all standards and 

requirements of the applicable member 

jurisdiction. 

(12) A project sponsor issued an 

approval by rule pursuant to paragraph 

(f)(9) of this section may utilize a source 

of water, except a public water supply, 

approved by the Commission pursuant 

to § 806.4(a) and issued to persons other 

than the project sponsor, provided any 

such source is approved for use in 

unconventional natural gas 

development, or hydrocarbon 

development, whichever is applicable, 

the project sponsor has an agreement for 

its use and the project sponsor registers 

such source with the Commission on a 

form and in the manner prescribed by 

the Commission. Use of the registered 

source shall not commence until the 

Commission acknowledges in writing 

that the registration is proper and 

complete. 

(13) A project sponsor issued an 

approval by rule pursuant to paragraph 

(f)(9) of this section may also utilize 

other sources of water, including but not 

limited to, water withdrawals or 

wastewater discharge not otherwise 

associated with an approval issued by 

the Commission pursuant to § 806.4(a), 

public water supplies, or another 

approval by rule issued pursuant to 

paragraph (f)(9) of this section, provided 

such sources are first approved by the 

Executive Director. Any request for 

approval shall be submitted on a form 

and in the manner prescribed by the 

Commission, shall satisfy the notice 

requirements set forth in § 806.15, and 

shall be subject to review pursuant to 

the standards set forth in subpart C of 

this part. 

* * * * * 

■ 10. Amend § 806.23 by revising the 

paragraph (b) subject heading and 

paragraph (b)(4) and adding paragraphs 

(b)(6) and (7) to read as follows: 

§ 806.23 Standards for water withdrawals. 

* * * * * 

(b) Limitations on and considerations 

for withdrawals. 

* * * * * 

(4) The Commission may require the 

project sponsor to undertake the 

following, to ensure its ability to meet 

its present or reasonably foreseeable 

water needs from available groundwater 

or surface water without limitation: 

(i) Investigate additional sources, 

interconnections or storage options to 

meet the demand of the project. 

(ii) Submit a water resource 

development plan that shall include, 

without limitation, sufficient data to 

address any supply deficiencies, 

identify alternative water supply 

options, including interconnections, 

and support existing and proposed 

future withdrawals. 

* * * * * 

(6) Notwithstanding this paragraph, 

existing withdrawals that successfully 

complete the process in § 806.12(h) and 

(i) shall satisfy the standards in 

paragraph (b)(2) of this section. Further, 

evaluation of the withdrawal shall 

include reasonably foreseeable need and 

the need for total system limits, 

compliance with § 806.21, and any 

changes to the project or project location 

and setting. 

(i) Approval of withdrawal limits on 

existing sources will not be set above 

the amount supported by the existing 

historical and current operating data or 

otherwise supported by the evaluation 

under § 806.12, and may be set at a 

different rate if supported by the 

evaluation required in this paragraph. 

(ii) Any approvals shall include 

metering and measurement of 

parameters consistent with § 806.30, 

and may include conditions requiring 

monitoring of surface water features or 

other withdrawal sources. 

(iii) If any reported metering or 

monitoring data or other information 

show a significant adverse impact to any 

consideration in paragraph (b)(2) of this 

section, the Commission may take 

actions necessary to eliminate the 

significant adverse impact, including 

but not limited to requiring the project 

to undertake more data collection and 

analysis, aquifer testing and/or 

conditioning the docket approval. 

(7) Notwithstanding this paragraph, 

small capacity sources shall be subject 

to any withdrawal limit, including total 

system limit, set by the Commission and 

shall include metering and 

measurement of parameters consistent 

with § 806.30. 

■ 11. Amend § 806.34 by revising 

paragraph (c)(2) to read as follows: 

§ 806.34 Emergencies. 

* * * * * 

(c) * * * 

(2) With the concurrence of the 

chairperson of the Commission and the 

commissioner from the affected member 

state, issue an emergency certificate for 

a term not to extend beyond the next 

regular business meeting of the 

Commission where the extension of the 

certificate may be included in the notice 

for the next regularly scheduled public 

hearing for that business meeting. 

* * * * * 

Dated: September 20, 2021. 

Jason E. Oyler, 

General Counsel and Secretary to the 

Commission. 

[FR Doc. 2021–20594 Filed 9–23–21; 8:45 am] 

BILLING CODE 7040–01–P