[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Rules and Regulations]
[Pages 60617-60622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24643]


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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 806 and 808


Review and Approval of Projects

AGENCY: Susquehanna River Basin Commission.

ACTION: Final rule.

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SUMMARY: This document contains final rules that amend the project 
review regulations of the Susquehanna River Basin Commission 
(Commission) to include subsidiary allocations for public water supply 
systems under the scope of withdrawals requiring review and approval; 
improve notice procedures for all project applications; clarify 
requirements for grandfathered projects increasing their withdrawals 
from an existing source or initiating a new withdrawal; refine the 
provisions governing transfer and re-issuance of approvals; clarify the 
Executive Director's authority to grant, deny, suspend, rescind, 
modify, or condition an Approval by Rule; include decisional criteria 
for diversions into the basin; amend administrative appeal procedures 
to broaden available remedies and streamline the appeal process; and 
make other minor regulatory clarifications to the text of the 
regulations.

DATES: Effective November 1, 2010.

ADDRESSES: Susquehanna River Basin Commission, 1721 N. Front Street, 
Harrisburg, PA 17102-2391.

FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel, 
telephone: 717-238-0423, ext. 306; fax: 717-238-2436; e-mail: 
<a href="/cdn-cgi/l/email-protection#374554565e4558774445555419595243"><span class="__cf_email__" data-cfemail="0d7f6e6c647f624d7e7f6f6e23636879">[email protected]</span></a>. Also, for further information on the final rulemaking, 
visit the Commission's Web site at http://www.srbc.net.

SUPPLEMENTARY INFORMATION:

Comments and Responses to Proposed Rulemaking

    Notice of proposed rulemaking was published in the Federal Register 
on June 25, 2010; the New York Register on July 7, 2010; the 
Pennsylvania Bulletin on July 10, 2010; and the Maryland Register on 
July 16, 2010. The Commission convened public hearings on July 27, 
2010, in Binghamton, New York and on July 2010, in Harrisburg, 
Pennsylvania. A written comment period was held open until August 10, 
2010. Comments on the proposed rulemaking were received at both the 
hearings and during the comment period. A summary of the comments and 
the Commission's responses thereto follows.

[[Page 60618]]

Comments by Section, Part 806

Section 806.4 Projects Requiring Review and Approval

    Comment: With respect to gas well development and hydrofracking 
operations, there is a need for the Commission to evaluate the 
cumulative impacts of water withdrawals and to require flow monitoring 
at water withdrawal sites.
    Response: The Commission does employ cumulative impact analysis in 
its review and approval of projects. Flows are monitored at all sites 
where passby flow requirements have been imposed either directly or 
through the use of reference gages. Commission field inspectors verify 
that users required to cease taking water at given flow levels are in 
fact abiding by passby limitations. In addition, the Commission has 
implemented a Remote Water Quality Monitoring Network with 30 
monitoring stations in the areas where drilling in the Marcellus Shale 
formation is most active.
    Comment: The Commission should exercise greater regulatory 
authority over drilling operations in the Marcellus Shale formation, 
including assuming jurisdiction over water quality related matters.
    Response: The Commission's current regulatory authority extends 
only to water withdrawal and consumptive use by gas drilling 
operations. As established in Section 3.2 of the Susquehanna River 
Basin Compact, the Commission is directed to utilize the existing 
agencies of Federal and State government who currently exercise 
regulatory authority on water quality, underground injection, and on 
the extraction of mineral resources. At this point, the member States 
are asserting their regulatory authority and it would not be 
appropriate for the Commission to interpose its authority and duplicate 
the plenary authority exercised by the States in this area. If, at some 
point in the future, the Commission concludes, after public hearing, 
that it must assume jurisdiction in order to effectuate the terms of 
the comprehensive plan or implement the terms of the Compact, it may 
then do so.

Section 806.6 Transfer and Re-Issuance of Approvals

    Comment: Allowing ``transfer of approvals'' under 18 CFR 806.6 is 
inappropriately treating water as a ``commodity'' instead of as a 
``common resource'' of the basin.
    Response: Under 18 CFR 806.6, the instances where approvals may be 
transferred with only administrative approval of the Executive Director 
are limited. Transfers of approvals more than ten years old, those 
changing the quantity or use of the water, or having pre-compact or 
pre-regulation elements will require a subsequent application for 
approval, thus phasing out grandfathered uses and bringing these 
projects under the authority of the Commission, where the water used 
can be better managed as a ``common resource'' of the basin. We would 
also note that transfer of approvals is not limited to the gas drilling 
industry. Other transfers occur, such as the transfer of water 
withdrawal approvals from municipalities to municipal authorities, 
whenever a project using the waters of the basin is sold to a new 
owner.

Section 806.15 Notice of Application

    Comment: Notification of property owners within one-half mile of a 
withdrawal is insufficient. Notice should be provided to all property 
owners in the watershed or even to all basin residents because of the 
high volumes of water withdrawals for gas production and the contents 
of fracking water. Also, people farther than a half mile may experience 
impacts to their water, air, and soil quality.
    Response: The one-half mile notification requirement for 
withdrawals provides more effective notice than the current contiguous 
property owner requirement that is based on proximity, not science. 
Ongoing scientific evaluations indicate that a one-half mile notice 
will cover the vast majority of areas affected by groundwater and 
surface water withdrawals. Thus, the Commission believes this new 
standard is both reasonable and appropriate. If data is collected 
during the aquifer test that indicates that the influence of the 
withdrawal extends beyond a half mile radius, the staff has the 
discretion to direct project applicants to send notification to 
property owners in these extended areas. Because newspaper notice is 
also required and because the Commission publishes an advanced notice 
for all withdrawal applications in the Federal Register and State 
notice publications prior to taking action, other interested parties 
throughout the watershed and the basin will have notice and opportunity 
to comment on such applications. Similar information is also provided 
to the public by the Commission through its Web-based Water Resources 
Portal.
    Comment: In amending its notification requirements for project 
applications, the Commission is properly focusing on those persons who 
are actually affected and who have a real interest in participating in 
the approval process.
    Response: Agreed.
    Comment: The Commission's proposed rules are scientifically based 
and therefore sound.
    Response: Agreed.
    Comment: The notice sent to landowners within one-half mile of a 
groundwater withdrawal should include an opportunity for the property 
owner to comment on the project application.
    Response: 18 CFR 806.15(a) specifies that all notices required 
under this section contain the address, electronic mail address, and 
phone number of the project sponsor and the Commission, and comments 
are therefore welcome from any landowner or other interested party who 
wishes to do so. Also, the form of notice sent to landowners contains 
information concerning the submission of comments and providing 
relevant contact information.
    Comment: The notice sent to property owners within one-half mile of 
a groundwater withdrawal should include information on how the 72-hour 
testing will be done, when it will occur, and other information 
concerning the evaluation and approval of the groundwater withdrawal 
project. Follow-up information should be provided to property owners 
receiving notifications such as the results of water withdrawal 
testing.
    Response: The Commission readily understands that landowners may 
have an interest in aquifer testing information at the application 
stage. Under current Commission procedures, however, applicants submit 
testing plans and conduct tests prior to the filing of an application 
that triggers the notice requirement. At this pre-application stage, 
applicants may also submit information supporting a request for a 
waiver of the testing requirements, which may or may not be granted. 
The Commission believes that the requirement for pre-application 
submission of test information is a conservative management approach 
helping to ensure that applications are supported by science. Rather 
than modifying this procedure, the Commission feels that the legitimate 
concerns expressed in this comment can best be addressed by providing 
landowners with a right of access to the information sought.
    Comment: For applications to use wastewater discharge sources, in 
addition to the newspaper notice, any property owner within 1,000 feet 
of the use (or some other appropriate distance compatible with other 
resource agencies) should be notified by mail.

[[Page 60619]]

    Response: Newspaper notices noting the use of a wastewater 
discharge source will be required in every area where the water will be 
used for natural gas development. The Commission believes that this 
form of notice will be sufficient. Also, all approved water sources 
that a natural gas developer may use on a given site are available for 
viewing on line by interested landowners at the Commission's Web based 
Water Resources Portal.

Section 806.24 Standards for Diversions

    Comment: The meaning of the ``catch all phrase'' in the proposed 
revision to 18 CFR 806.24 requiring consideration of the ``extent to 
which the proposed diversion satisfies all other applicable standards 
set forth in subchapter C of this part,'' is not clear. It is 
recommended that this phrase be struck.
    Response: While the Commission agrees that a clarification is 
needed, it is important that the sponsors of diversion projects 
understand that they must also abide by the Commission's general and 
specific standards set forth in subchapter C of part 806 governing 
withdrawals and consumptive use. The Commission has modified this 
language in the final rule to add more clarity.
    Comment: For projects involving a diversion of water out of the 
basin, the in-basin public should be noticed and have an opportunity to 
provide written comments. This notice should tell the public where the 
water is being diverted and why.
    Response: The proposed regulations do provide for newspaper 
publication in the in-basin area, plus since the diversion will also 
involve a withdrawal of some kind in the in-basin area, property owners 
within one-half mile will also receive notifications in accordance with 
18 CFR 806.15.

General Comments

    Comment: The Commission should institute a moratorium on approval 
of any unconventional gas drilling related water withdrawals until the 
completion of certain studies that will assess the environmental 
impacts of drilling and fracking activity.
    Response: The Commission can find no evidence linking its approval 
of water withdrawals and consumptive uses by gas drilling operations in 
the Marcellus Shale formation with a threat of harm or of injury to the 
public justifying a moratorium on all approvals. Ultimately, a 
moratorium based on supposition rather than science cannot be legally 
justified or defended. It is also far more appropriate for the States 
and the Federal government, who exercise broader authority with respect 
to water quality, underground injection and mineral extraction, and who 
have such studies underway, to inform the Commission's regulatory 
program as that science develops. In the interim, the Commission 
continues to study and evaluate the cumulative impact of these 
withdrawals and consumptive use on the water resources of the basin.
    Comment: The idea of allowing water withdrawals for any other 
reason than to support life is abhorrent.
    Response: The Susquehanna River Basin Compact and the Commission 
Comprehensive Plan do place importance upon the conservation of water 
to support the living resources of the basin and the Chesapeake Bay, 
and the Commission devotes a major part of its mission to protecting 
those resources; however, the purposes of the Compact and the goals of 
the Comprehensive Plan also include the utilization and development of 
the basin's water resources to make secure and protect developments 
within the States (i.e. economic development). Managing the basin's 
waters to protect living resources and developments within the States 
are not mutually exclusive efforts.
    Comment: The Commission did not give sufficient public notice of 
the public hearings on these proposed rules.
    Response: The Commission followed the notice requirements of its 
own regulations found at 18 CFR 808.1, publishing well in advance of 
public hearings the text of the proposed rules in the Federal Register 
and in the member State notice publications, and including in those 
notices the date, time and place of two public hearings held in 
Binghamton, NY on July 27, 2010, and Harrisburg, PA on July 29, 2010. 
Written comments were also invited through August 10, 2010. The 
Commission gave further notice of the proposed rulemaking contents, the 
public hearings, and the comment period via its Web site and in a news 
release sent to media throughout the basin. These are the same notice 
procedures followed by the Commission on past proposed rulemaking 
actions as well. The Commission is, nevertheless, considering ways that 
it can improve notice procedures in future rulemaking actions and 
welcomes this comment.
    Comment: The Pennsylvania Department of Environmental Protection 
(PADEP) is permitting gas drilling on lands subject to frequent 
inundation, creating a danger that toxic materials or waters stored on 
such land will be washed away and contaminate streams and rivers.
    Response: 18 CFR 806.21 provides that the Commission may suspend 
the review of any project that has not been approved by a member 
jurisdiction or a political subdivision thereof. The Commission may 
also modify, suspend, or revoke a previously granted approval where the 
project sponsor fails to obtain or maintain the approval of member 
jurisdiction or political subdivision thereof. All land uses in 
Pennsylvania in flood prone designated communities are subject to the 
provisions of the Pennsylvania Flood Plain Management Act and local 
ordinances adopted pursuant thereto. If a project sponsor is not in 
compliance with these local ordinances, they run the risk of having 
their Commission approval suspended or revoked.
    Comment: The Commission has been blocking participation of 
landowners in the approval process for gas drilling consumptive use and 
withdrawal approvals by withholding information on pending project 
applications.
    Response: The Commission disagrees with this comment. The 
Commission has historically welcomed and encouraged public comment on 
applications submitted to the Commission for its review and 
consideration. It continues to improve its notice requirements, as 
witnessed by the modifications being made to 18 CFR 806.15 of this 
final rule, and has taken considerable steps to build its online Water 
Resources Portal Web application to facilitate that end.

Comment by Section, Part 808

Section 808.2 Administrative Appeals

    Comment: There is a need to improve some of the provisions of the 
proposed changes to the administrative appeal provisions of 18 CFR 
808.2 by removing certain unneeded language, defining a standard for 
granting nunc pro tunc appeals, providing for a direct notice of 
hearing to the petitioner and project sponsor, and specifying a 
deadline for filing an appeal for consideration at the next regular 
Commission meeting.
    Response: Agreed. These changes have been made to the text of 18 
CFR 808.2 in the final rulemaking document.

List of Subjects in 18 CFR Parts 806 and 808:

    Administrative practice and procedure, Water resources.

0
Accordingly, for the reasons set forth in the preamble, the Susquehanna 
River Basin Commission amends 18 CFR parts 806 and 808 as follows:

[[Page 60620]]

PART 806--REVIEW AND APPROVAL OF PROJECTS

Subpart C--Standards for Review and Approval

0
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.

0
2. In Sec.  806.4, revise paragraphs (a)(2) introductory text, 
(a)(2)(iv), and (c) to read as follows:


Sec.  806.4  Projects requiring review and approval.

    (a) * * *
    (2) Withdrawals. Any project described below shall require an 
application to be submitted in accordance with Sec.  806.13, and shall 
be subject to the standards set forth in Sec.  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 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, Sec.  806.5, or 18 CFR part 801. The taking 
or removal of water by a public water supplier indirectly through 
another public water supply system or another water user's facilities 
shall constitute a withdrawal hereunder.
* * * * *
    (iv) With respect to groundwater projects in existence prior to 
July 13, 1978, and surface water projects in existence prior to 
November 11, 1995, any project that will increase its withdrawal from 
any source, or initiate a withdrawal from a new source, or combination 
of sources, by a consecutive 30-day average of 100,000 gpd or more, 
above that maximum consecutive 30-day amount which the project was 
withdrawing prior to the said applicable date.
* * * * *
    (c) Any project that did not require Commission approval prior to 
January 1, 2007, and not otherwise exempt from the requirements of 
paragraph (a)(1)(iv), (a)(2)(v), or (a)(3)(iv) pursuant to paragraph 
(b) of this section, may be undertaken by a new project sponsor upon a 
change of ownership pending action by the Commission on an application 
submitted by such project sponsor requesting review and approval of the 
project, provided such application is submitted to the Commission in 
accordance with this part within 90 days of the date change of 
ownership occurs and the project features related to the source, 
withdrawal, diversion or consumptive use of water, or the nature or 
quantity of water withdrawal, diversion or consumptive use associated 
with the project do not change pending review of the application. For 
purposes of this paragraph, changes in the quantity of water 
withdrawal, diversion or consumptive use shall only relate to increases 
in quantity in excess of the quantity withdrawn, diverted or 
consumptively used prior to the change of ownership.

0
3. In Sec.  806.6, revise paragraphs (a), (b) introductory text, 
(b)(1), (c) introductory text and (d) introductory text, and add 
paragraph (e) to read as follows:


Sec.  806.6  Transfer and re-issuance of approvals.

    (a) An existing Commission project approval may be transferred or 
conditionally transferred to a new project sponsor upon a change of 
ownership of the project, subject to the provisions of paragraphs (b), 
(c) and (d) of this section, and the new project sponsor may only 
operate the project in accordance with and subject to the terms and 
conditions of the existing approval pending approval of the transfer, 
provided the new project sponsor notifies the Commission within 90 days 
from the date of the change of ownership, which notice shall be on a 
form and in a manner prescribed by the Commission and under which the 
new project sponsor certifies its intention to comply with all terms 
and conditions of the transferred approval and assume all other 
associated obligations.
    (b) An existing Commission project approval for any of the 
following categories of projects may be conditionally transferred, 
subject to administrative approval by the Executive Director, upon a 
change of ownership and the new project sponsor may only operate such 
project in accordance with and subject to the terms and conditions of 
the transferred approval:
    (1) A project undergoing a change of ownership as a result of a 
corporate reorganization where the project property is transferred to a 
corporation by one or more corporations solely in exchange for stock or 
securities of the transferee corporation, provided that immediately 
after the exchange the transferor corporation(s) own 80 percent of the 
voting stock and 80 percent of all other stock of the transferee 
corporation.
* * * * *
    (c) An existing Commission approval of a project that satisfies the 
following conditions may be conditionally transferred and the project 
sponsor may only operate such project in accordance with and subject to 
the terms and conditions of the conditionally transferred approval, 
pending action by the Commission on the application submitted in 
accordance with paragraph (c)(3) of this section:
* * * * *
    (d) An existing Commission project approval for any project not 
satisfying the requirements of paragraphs (b) or (c) of this section 
may be conditionally transferred and the project sponsor may only 
operate such project in accordance with and subject to the terms and 
conditions of the conditionally transferred approval, pending action by 
the Commission on an application the project sponsor shall submit to 
the Commission, provided that:
* * * * *
    (e) An existing Commission project approval may be re-issued by the 
Executive Director at the request of a project sponsor undergoing a 
change of name, provided such change does not affect ownership or 
control of the project or project sponsor. The project sponsor may only 
continue to operate the project under the terms and conditions of the 
existing approval pending approval of its request for re-issuance, 
provided it submits its request to the Commission within 90 days from 
the date of the change, which notice shall be on a form and in a manner 
prescribed by the Commission, accompanied by the appropriate fee 
established therefore by the Commission.

0
4. In Sec.  806.7, revise paragraph (a) to read as follows:


Sec.  806.7  Concurrent project review by member jurisdictions.

    (a) The Commission recognizes that agencies of the member 
jurisdictions will exercise their review and approval authority and 
evaluate many proposed projects in the basin. The Commission will adopt 
procedures to assure compatibility between jurisdictional review and 
Commission review.
* * * * *

0
5. Revise Sec.  806.15 to read as follows:


Sec.  806.15  Notice of application.

    (a) 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 planning agency of each county 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

[[Page 60621]]

which the project is located. The project sponsor shall also meet any 
of the notice requirements set forth in paragraphs (b) through (e) of 
this section, if applicable. All notices required under this section 
shall be provided or published no later than 10 days after submission 
of the application to the Commission and shall contain a description of 
the project, its purpose, the requested quantity of water to be 
withdrawn obtained from for sources other than withdrawals or 
consumptively used, and the address, electronic mail address, and phone 
number of the project sponsor and the Commission. All such notices 
shall be in a form and manner as prescribed by the Commission.
    (b) For withdrawal applications submitted pursuant to Sec.  
806.4(a)(2), 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-half 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.
    (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) For applications submitted under Sec.  806.22(f)(12)(ii) to use 
a public water supply source, the newspaper notice requirement 
contained in paragraph (a) of this section shall be satisfied by 
publication in a newspaper of general circulation in the area served by 
the public water supply.
    (e) For applications submitted under Sec.  806.22(f)(12)(ii) to use 
a wastewater discharge source, the newspaper notice requirement 
contained in paragraph (a) of this section shall be satisfied by 
publication in a newspaper of general circulation in each area within 
which the water obtained from such source will be used for natural gas 
development.
    (f) The project sponsor shall provide the Commission with a copy of 
the United States Postal Service return receipt for the notifications 
to agencies of member States, municipalities and county planning 
agencies required under paragraph (a) of 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. Until these items are 
provided to the Commission, processing of the application will not 
proceed. The project sponsor shall maintain all proofs of notice 
required hereunder for the duration of the approval related to such 
notices.

0
6. In Sec.  806.22, revise paragraphs (e)(1), (e)(6), (f)(3), (f)(9), 
and (f)(12) to read as follows:


Sec.  806.22  Standards for consumptive uses of water.

* * * * *
    (e) * * *
    (1) Except with respect to projects involving natural gas well 
development subject to the provisions of paragraph (f) of this section, 
any project whose sole source of water for consumptive use is a public 
water supply, may be approved by the Executive Director under this 
paragraph (e) in accordance with the following, unless the Executive 
Director determines that the project cannot be adequately regulated 
under this approval by rule:
    (i) Notification of Intent: No fewer than 90 days prior to the 
construction or implementation of a project or increase above a 
previously approved quantity of consumptive use, the project sponsor 
shall submit a Notice of Intent (NOI) on forms prescribed by the 
Commission, and the applicable application fee, along with any required 
attachments.
    (ii) Within 10 days after submittal of an NOI under paragraph 
(e)(1)(i) of this section, the project sponsor shall satisfy the notice 
requirements set forth in Sec.  806.15.
* * * * *
    (6) The Executive Director may grant, deny, suspend, rescind, 
modify or condition an approval to operate under this approval by rule 
and will notify the project sponsor of such determination, including 
the quantity of consumptive use approved.
* * * * *
    (f) * * *
    (3) Within 10 days after submittal of an NOI under paragraph (f)(2) 
of this section, the project sponsor shall satisfy the notice 
requirements set forth in Sec.  806.15.
* * * * *
    (9) The Executive Director may grant, deny, suspend, rescind, 
modify or condition an approval to operate under this approval by rule 
and will notify the project sponsor of such determination, including 
the sources and quantity of consumptive use approved. The issuance of 
any approval hereunder shall not be construed to waive or exempt the 
project sponsor from obtaining Commission approval for any water 
withdrawals or diversions subject to review pursuant to Sec.  806.4(a).
* * * * *
    (12) The following additional sources of water may be utilized by a 
project sponsor in conjunction with an approval by rule issued pursuant 
to paragraph (f)(9) of this section:
    (i) Water withdrawals or diversions approved by the Commission 
pursuant to Sec.  806.4(a) and issued to persons other than the project 
sponsor, provided any such source is approved for use in natural gas 
well development, the project sponsor has an agreement for its use, and 
at least 10 days prior to use, the project sponsor registers such 
source with the Commission on a form and in a manner as prescribed by 
the Commission, and provides a copy of same to the appropriate agency 
of the member State. Any approval issued hereunder shall be further 
subject to any approval or authorization required by the member State 
to utilize such source(s). The project sponsor shall record on a daily 
basis, and report quarterly on a form and in a manner prescribed by the 
Commission, the quantity of water obtained from any source registered 
hereunder.
    (ii) Sources of water other than those subject to paragraph 
(f)(12)(i) of this section, including public water supply or wastewater 
discharge, provided such sources are first approved by the Executive 
Director pursuant to this section. Any request to utilize such 
source(s) shall be submitted on a form and in a manner as prescribed by 
the Commission, shall satisfy the notice requirements set forth in 
Sec.  806.15, and shall be subject to review pursuant to the standards 
set forth in subpart C of this part. Any approval issued hereunder 
shall be further subject to any approval or authorization required by 
the member State to utilize such source(s).

0
7. In Sec.  806.24, add paragraph (c)(2), to read as follows:

[[Page 60622]]

Sec.  806.24  Standards for diversions.

* * * * *
    (c) * * *
    (2) In deciding whether to approve a proposed diversion into the 
basin, the Commission shall also consider and the project sponsor shall 
provide information related to the following factors:
    (i) Any adverse effects and cumulative adverse effects the project 
may have on the Susquehanna River Basin, or any portion thereof, as a 
result of the introduction or potential introduction of invasive or 
exotic species that may be injurious to the water resources of the 
basin.
    (ii) The extent to which the proposed diversion satisfies all other 
applicable general and specific standards set forth in subpart C of 
this part pertaining to withdrawals and consumptive use.

0
8. Revise Sec.  806.35 to read as follows:


Sec.  806.35  Fees

    Project sponsors shall have an affirmative duty to pay such fees as 
established by the Commission to cover its costs of administering the 
regulatory program established by this part, including any 
extraordinary costs associated with specific projects.

PART 808--HEARINGS AND ENFORCEMENT ACTIONS

0
10. The authority citation for part 808 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.

Subpart A--Conduct of Hearings

0
11. In Sec.  808.2, revise paragraphs (a), (b), (c), (d), (e), (f), 
(g), and (h) to read as follows:


Sec.  808.2  Administrative appeals.

    (a) A project sponsor or other person aggrieved by a final action 
or decision of the Commission or Executive Director on a project 
application or a records access determination made pursuant to 
Commission policy may file a written appeal requesting a hearing. In 
the case of a project approval or denial, such appeal shall be filed by 
a project sponsor within 30 days of receipt of actual notice, and by 
all others within 30 days of publication of notice of the action taken 
on the project in the Federal Register. In the case of records access 
determinations, such appeal shall be filed with the Commission within 
30 days of receipt of actual notice of the determination. Appeals filed 
later than 20 days prior to a regular Commission meeting will be 
considered at a subsequent Commission meeting. Appeals shall be filed 
on a form and in a manner prescribed by the Commission and the 
petitioner shall have 20 days from the date of filing to amend the 
appeal form.
    (b) The appeal shall identify the specific action or decision for 
which a hearing is requested, the date of the action or decision, the 
interest of the person requesting the hearing in the subject matter of 
the appeal, and a statement setting forth the basis for objecting to or 
seeking review of the action or decision.
    (c) Any request not filed on or before the applicable deadline 
established in paragraph (a) of this section hereof will be deemed 
untimely and such request for a hearing shall be considered denied 
unless the Commission, upon written request and for good cause shown, 
grants leave to make such filing nunc pro tunc; the standard applicable 
to what constitutes good cause shown being the standard applicable in 
analogous cases under Federal law. Receipt of requests for hearings 
pursuant to this section, whether timely filed or not, shall be 
submitted by the Executive Director to the commissioners for their 
information.
    (d) Petitioners shall be limited to a single filing that shall set 
forth all matters and arguments in support thereof, including any 
ancillary motions or requests for relief. Issues not raised in this 
single filing shall be considered waived for purposes of the instant 
proceeding. Where the petitioner is appealing a final determination on 
a project application and is not the project sponsor, the petitioner 
shall serve a copy of the appeal upon the project sponsor within five 
days of its filing.
    (e) If a hearing is granted, the Commission shall serve notice 
thereof upon the petitioner and project sponsor and shall publish such 
notice in the Federal Register. The hearing shall not be held less than 
20 days after publication of such notice. Hearings may be conducted by 
one or more members of the Commission, by the Executive Director, or by 
such other hearing officer as the Commission may designate.
    (1) The petitioner may also request a stay of the action or 
decision giving rise to the appeal pending final disposition of the 
appeal, which stay may be granted or denied by the Executive Director 
after consultation with the Commission chair and the member from the 
affected member State. The decision of the Executive Director on the 
request for stay shall not be appealable to the Commission under this 
section and shall remain in full force and effect until the Commission 
acts on the appeal.
    (2) In addition to the contents of the request itself, the 
Executive Director, in granting or denying the request for stay, will 
consider the following factors:
    (i) Irreparable harm to the petitioner.
    (ii) The likelihood that the petitioner will prevail.
    (f) The Commission shall grant the hearing request pursuant to this 
section if it determines that an adequate record with regard to the 
action or decision is not available, the case involves a determination 
by the Executive Director or staff which requires further action by the 
Commission, or that the Commission has found that an administrative 
review is necessary or desirable. If the Commission denies any request 
for a hearing, the party seeking such hearing shall be limited to such 
remedies as may be provided by the compact or other applicable law or 
court rule.
    (g) If a hearing is granted, the Commission shall refer the matter 
for hearing to be held in accordance with Sec.  808.3, and appoint a 
hearing officer.
    (h) Intervention. (1) A request for intervention may be filed with 
the Commission by persons other than the petitioner within 20 days of 
the publication of a notice of the granting of such hearing in the 
Federal Register. The request for intervention shall state the interest 
of the person filing such notice, and the specific grounds of objection 
to the action or decision or other grounds for appearance. The hearing 
officer(s) shall determine whether the person requesting intervention 
has standing in the matter that would justify their admission as an 
intervener to the proceedings in accordance with Federal case law.
    (2) Interveners shall have the right to be represented by counsel, 
to present evidence and to examine and cross-examine witnesses.
* * * * *

    Dated: September 21, 2010.
Thomas W. Beauduy,
Deputy Director.
[FR Doc. 2010-24643 Filed 9-30-10; 8:45 am]
BILLING CODE 7040-01-P


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