Review and Approval of Projects; Special Regulations and Standards; Hearings and Enforcement Actions, 78570-78593 [E6-21674]

Agencies

• Susquehanna River Basin Commission

[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78570-78593]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-21674]



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Part III





Susquehanna River Basin Commission





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18 CFR Parts 803, 804, 805 et al.



Review and Approval of Projects; Special Regulations and Standards; 
Hearings and Enforcement Actions; Final Rule

Federal Register / Vol. 71, No. 250 / Friday, December 29, 2006 / 
Rules and Regulations

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SUSQUEHANNA RIVER BASIN COMMISSION

18 CFR Parts 803, 804, 805, 806, 807 and 808


Review and Approval of Projects; Special Regulations and 
Standards; Hearings and Enforcement Actions

AGENCY: Susquehanna River Basin Commission (SRBC).

ACTION: Final rule.

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SUMMARY: This document contains amendments to the SRBC's project review 
regulations currently published at 18 CFR Parts 803, 804 and 805. The 
regulations provide the procedural and substantive rules for SRBC 
review and approval of water resources projects and the procedures 
governing hearings and enforcement actions. These amendments include 
additional due process safeguards, add new standards for projects, 
improve organizational structure, incorporate recently adopted policies 
and clarify language. The amendments were first proposed on July 7, 
2006 in the Federal Register, Vol. 71, No. 130, p. 38692. Comments 
received on the proposed rule making are summarized with accompanying 
responses in the ``Supplementary Information'' section below. Changes 
were made to the proposed rules in the final rule making in response to 
these comments, including the ``removal and reservation'' of Parts 803, 
804 and 805 and the substitution therefore in this final rule making 
action of Parts 806, 807 and 808, respectively.

DATES: These rules shall be effective January 1, 2007.

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

FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel, 
717-238-0423; Fax: 717-238-2436; e-mail: rcairo@srbc.net. Also, for 
further information on the final rule making action, visit the 
Commission's Web site at https://www.srbc.net.

SUPPLEMENTARY INFORMATION:

Background

    The SRBC proposed rules amending its ``Regulations and Procedures 
for the Review of Projects'' presently found at 18 CFR Parts 803, 804 
and 805, which were published on July 7, 2006 in the FR, Vol. 71, No. 
130, p. 38692. Those rules establish: (1) The scope and procedures for 
review and approval of projects under Section 3.10 of the Susquehanna 
River Basin Compact, Pub. L. 91-575; 83 Stat. 1509 et seq. (the 
compact); (2) special standards under Section 3.4(2) of the compact 
governing water withdrawals and consumptive use of water; and (3) 
procedures for hearings and enforcement actions. The SRBC received 
numerous comments on the proposed rule making action, which are 
summarized below with an accompanying response to each. The SRBC made a 
number of adjustments and changes to the proposed rules in this final 
rule making action in response to those comments. One change that 
should be noted is the removal and reservation of 18 CFR Parts 803, 804 
and 805, and the substitution therefore in this final rule making 
action of Parts 806, 807 and 808 respectively. The contents that 
appeared in Parts 803, 804 and 805 of the proposed rule making now 
appear in Parts 806, 807 and 808 respectively; hence, this is not an 
enlargement of the purposes of the proposed rule making, but simply an 
editorial change in response to a comment that SRBC received pointing 
to the possible confusion of retaining the same numbering system for 
the revised regulations. Comments received on the proposed rule making 
referred to the numbering system as published, namely Parts 803, 804 
and 805, and comments and responses set forth below follow that same 
construction, even though now superseded by Parts 806, 807 and 808, 
respectively.

General Comments

    Comment: Revisions will strengthen and streamline SRBC project 
review regulations.
    Response: The Commission agrees that the revisions will strengthen 
and streamline its regulatory program.
    Comment: SRBC proposed regulations should more strongly emphasize 
the importance of economic development in its statement of purposes and 
in the criteria on which an approval will be granted or denied. SRBC 
should attempt to more carefully balance the economic benefits of a 
project versus other interests such as the environment. Tools should be 
developed for analyzing the ``harms'' of a project versus its 
``benefits.'' If there are only minor environmental impacts and great 
economic benefits, projects should be approved.
    Response: The Commission believes that there are already sufficient 
references to the purposes of economic development in both the 
Susquehanna River Basin Compact (the ``compact'') and the project 
review regulations. The Commission, in its review process, does take 
into consideration the economic development aspects of a project and 
works with project sponsors to help them use water resources in a way 
that will enhance economic growth while avoiding conflicts with other 
users..
    Comment: SRBC should explore the use of free market tools such as 
credits and trading for compliance with its regulations.
    Response: The Commission considers that tools such as credits and 
trading for compliance with regulations are probably more applicable to 
water quality regulations than to water quantity regulations of the 
type administered by the Commission. Nevertheless, an element of free 
market tools is already incorporated in the proposed regulation Section 
803.22 (``Standards for consumptive uses of water''), in that project 
sponsors are allowed a wide choice of mitigation methods, including the 
free market acquisition of water for flow augmentation.
    Comment: In several instances, the Commission is writing authority 
into the regulations that does not exist under the compact. For 
example, Article 11 of the compact pertaining to protected areas is the 
only section that mentions any authority for approval of withdrawals. 
Also, there is no compact authority for other items in the regulations 
such as cease and desist orders and the issuance of subpoenas. Many 
other examples are cited.
    Response: This comment reads the terms of the compact far too 
narrowly and fails to consider other broad grants of power given to the 
Commission to manage the river basin's water resources. For example, 
Section 3.5(4) of the compact states that the Commission ``shall assume 
jurisdiction in any matter affecting water resources whenever it 
determines * * * that the effectuation of the comprehensive plan or the 
implementation of the compact so requires.'' Also, Section 3.4(9) 
states that the Commission ``may have and exercise all powers necessary 
or convenient to carry out its express powers and other powers which 
reasonably may be implied therefrom.'' Finally, Section 3.10(2) of the 
compact makes it clear that the Commission's power to approve projects 
is not limited.
    Comment: SRBC has seemingly unlimited authority to arbitrarily 
impose enforcement action and prescribe remedies, and is not 
responsible or accountable to its basin-constituent population or 
economic interests.
    Response: Like any other government agency, the Commission does not 
operate without limits imposed by the compact, the Constitution, and 
laws of the United States. Also, the Commission is directly responsible 
to its member

[[Page 78571]]

jurisdictions, each of which is represented on the Commission.
    Comment: The proposed regulations should have been presented in a 
redline/black-line format that shows changes along side of current 
regulations. Old regulation sections from which regulations were moved 
or deleted should have been ``reserved'' instead of reused with new 
regulatory material because existing policies that refer to these same 
sections will no longer be accurate and could lead to confusion among 
those persons reviewing those policies.
    Response: These revised regulations represent a complex overhaul of 
the current Commission regulations that involved the wholesale 
reorganization of the existing sections, the extensive revision of 
existing sections, and the addition of whole new sections. Such changes 
cannot be effectively placed in redline/black-line, side-by-side format 
without creating even more confusion for a reviewer attempting to 
review the disjointed mixture of moving text, additions, and deletions. 
It was therefore decided that the proposed revisions would be presented 
as an entirely new package of regulations and that the major changes 
would be described section by section in the preamble of the proposed 
rulemaking action. Most policies were incorporated into the body of the 
regulations, which will provide clarity for the regulated community and 
others. References to sections of the regulations that are no longer 
accurate will be revised accordingly. Also, with regard to 
``reserving'' old sections of the regulations, the Commission has 
decided that, as part of its final rulemaking action, it will ``remove 
and reserve'' Parts 803, 804 and 805 and replace those Parts 
respectively with new Parts 806, 807 and 808. This is being done in 
accordance with Federal Register guidelines. All references in this 
Comment and Response document will reference section numbers as 
originally proposed (i.e., Parts 803, 804, and 805).
    Comment: The new policies, procedures, and regulations implemented 
by the Commission over the last six years have already imposed 
significant administrative burdens on the regulated community. Some in 
the regulated community are now concerned that these new regulations 
will impose even more burdens that will adversely affect the economic 
vitality of the basin and drive investors to basins with a friendlier 
regulatory environment.
    Response: The Commission acknowledges that compliance with 
Commission regulations does place certain short-term administrative and 
financial obligations upon the regulated community. However, the long-
term benefits of Commission management and protection of a critical 
resource must also be considered. Project sponsors and other water 
users receive certain protections related to their water use that 
extend far beyond the protections afforded by the common law. 
Furthermore, the incorporation of policies and overall refinement of 
the regulations are intended to foster sustainable use of the resource 
over the term of an approval, even through times of drought. As such, 
some of the rigor complained about affords protection to existing uses, 
including economic uses, and allows for responsible economic 
development in the basin.
    Comment: SRBC should establish a more integrated project approval 
process that directly considers the impacts of a project in terms of 
both water quantity and quality, and facilitates implementation of 
statewide water quality programs and mandates, including the Chesapeake 
Bay Tributary Strategies program, the anti-degradation program and the 
TMDL program.
    Response: The member jurisdictions continue to maintain primary 
jurisdiction for regulating water quality pursuant to federal 
regulations under the Clean Water Act. In order to avoid duplication, 
the Commission focuses its review on water quantity while considering 
the impacts of a project on water quality, primarily through 
integrated, extensive coordination with agencies of its member 
jurisdictions.
    Comment: SRBC should encourage ``smart growth'' communities that 
cluster development and have less impact on the environment. SRBC, by 
increasing regulatory thresholds, eliminating transferability of 
approvals, shortening amortization times and generally creating 
uncertainty about future water rights, would seem to promote sprawl by 
encouraging large lot development with individual wells to avoid SRBC 
regulation.
    Response: The Commission rejects the notion that this set of 
revised regulations will somehow discourage clustered development and 
create uncertainty about future water rights. If anything, these 
strengthened regulations improve the Commission's ability to 
effectively manage the water resources of the basin, and will reinforce 
certainty about future water supplies by assuring users that they are 
drawing on reliable sources of water that will not be subject to 
conflict or interference with other users. It also acknowledges that 
land use decisions are made at the local level in all of its member 
jurisdictions.

Comments by Section, Part 803

Section 803.1 Scope

    Comment: Decisions made by the Commission should reference the 
section of the comprehensive plan that is relied upon.
    Response: Docket approvals presently do reference the project's 
compliance with the terms of the comprehensive plan, but a reference to 
a single section of the comprehensive plan would be too limiting in 
most cases.

Section 803.2 Purposes

    Comment: The reference to economic development should be 
strengthened by stating that it is a purpose of the regulations to 
promote economic development and financial investment. It was further 
suggested that the purposes section should acknowledge the water-
related dependency of many large and small commercial, industrial, and 
mining industries in the basin. Finally, the words ``and control'' 
should be deleted from Section 803.2(a)(2).
    Response: Again, the Commission feels that the existing reference 
to economic development in this section is sufficient. The Commission 
also promotes economic stability and certainty by protecting the 
sources of water that all such activities depend on for their use and 
development. The Commission protects more than just the environment; 
the Commission heads off conflicts between users and helps users 
maintain reliable sources of water. The word ``control'' comes directly 
from the purposes section of the Susquehanna River Basin Compact and 
cannot be removed or deleted.

Section 803.3 Definitions

    Comment: Revise the ``groundwater'' definition to indicate that 
``groundwater * * * includes that water contained in quarries, pits and 
underground mines not originating directly from surface water inflow 
(runoff).'' Also add that the term groundwater * * * ``includes water 
derived from a spring by pumping or other means of drainage which 
reduces or eliminates the surface flow.''
    Response: The definition has been modified to include ``or other 
means of drainage.'' The Commission does not consider the addition of 
the other suggested wording to be necessary.
    Comment: The last sentence in the ``groundwater'' definition is 
confusing and, when read in conjunction with the ``surface water'' 
definition, may exclude ground or surface water that is intended to be 
included.

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    Response: Agreed. Additional language contained in the current 
definition has been reinserted to clarify the definition.
    Comment: The ``surface water'' definition uses the term ``surface 
of the earth,'' while the ``groundwater'' definition uses the term 
``surface of the ground.''
    Response: Agreed. The term has been changed to ``surface of the 
ground.''
    Comment: There is a need to define the term ``undertake'' to make 
clear what constitutes the commencement of a project requiring approval 
under Section 803.4, and, to insure that mere site preparation such as 
clearing and grubbing are not included under the definition, a 
definition of ``construction'' should also be included.
    Response: Agreed. New definitions have been included for the term 
``undertake'' and for the term ``construction.'' The definition of 
construction insures that mere site preparation activity will not be 
included under the definition of ``undertake''. Combined, these 
definitions clarify what activity is subject to prior review and 
approval.
    Comment: Revise the ``project'' definition because it is confusing 
and ambiguous.
    Response: This definition utilizes wording taken directly from the 
Susquehanna River Basin Compact.
    Comment: Revise the ``pre-compact consumptive use'' definition by 
adding the following words after the date ``January 23, 1971'': 
``established on the basis of credible documentation.''
    Response: The Commission does not consider the suggested language 
to be necessary. All such determinations are already made on the basis 
of credible documentation evaluated by Commission staff.
    Comment: Revise the ``water resources'' definition to remove the 
term ``and related natural resources'' because it is unclear what these 
``related natural resources'' are.
    Response: This definition utilizes wording taken directly from the 
Susquehanna River Basin Compact.
    Comment: Restore the use of the words ``for use'' in the 
``withdrawal'' definition.
    Response: The Commission agrees to restore the words ``for use in 
the basin.''

Section 803.4 Projects Requiring Review and Approval

    Comment: The proposal to require a new review and approval by the 
Commission after a change of ownership of a project will substantially 
complicate and hinder the transfer of projects and therefore reduce the 
attractiveness of investments in projects in the basin. Frequent 
corporate changes, reorganizations, and mergers are common in the 
energy industry today. Requiring a new docket application for each such 
event would be administratively unwieldy, reduce predictability, and 
will add unnecessary risk for anyone willing to sponsor a project.
    Comment: Requiring approvals upon change of ownership of a project 
may also discourage water companies from taking over smaller, 
inadequate systems due to the uncertainties created regarding the new 
quantities of water that will be available under a reissued approval. 
Furthermore, there does not appear to be a need to require that full 
project reviews be performed when there is a change of ownership of a 
project unless there is a change in conditions that really warrants 
such a full review.
    Comment: The Commission should consider some way of preliminarily 
evaluating whether there has been such a change before requiring 
submission of a new application by transferees or simply reopening the 
docket under its reopening authority. Also, the Commission may want to 
focus on the ability of a transferee to comply with the existing 
approval. Yet another suggestion is for the Commission to require the 
submission of a notice of a change of ownership prior to the transfer, 
together with a transfer fee. This would enable the Commission to stay 
fully informed about which entities hold approvals, facilitate 
enforcement of any limitations or conditions, and offset the 
Commission's processing and administrative costs.
    Response: The Commission has added new paragraph (b) that lists 
categories of projects that are exempt from the requirement for 
Commission approval upon a change of ownership. These exemptions were 
originally contained in the ``change of ownership'' definition and have 
been relocated to this section. The Commission has also added new 
paragraph (c) that allows projects not otherwise exempt under paragraph 
(b), to be undertaken by a new project sponsor (the transferee) upon a 
change of ownership pending action by the Commission on an application 
submitted by such new project sponsor requesting review and approval of 
the project. Both paragraphs (b) and (c) relate to projects that did 
not require Commission approval prior to January 1, 2007.
    Comment: New owners should be required to seek approval of their 
water consumption and have full accountability for compliance with the 
terms for approval.
    Response: Subject to the exceptions noted in our response above, 
the Commission agrees.
    Comment: The Commission should not end the grandfathering of 
consumptive uses existing prior to January 23, 1971. The Commission has 
not provided a good reason to end this practice that has been a part of 
the Commission's regulations since their inception, and which project 
sponsors have come to rely on.
    Comment: The intention of grandfathering is to protect the 
expectations of the person, but not the project. The proposed 
limitation on grandfathering does not affect the reasonable 
expectations of any person who is the current owner. Ending 
grandfathering assures fair implementation of the regulations. 
Exemptions provided to ag and family transfers should be continued 
indefinitely.
    Response: The rationale for gradually retiring grandfathered 
benefits upon the transfer of ownership of a project is that, with few 
exceptions, such portions of the basin's water resources should not be 
allowed to continue indefinitely into the future unmanaged. Under the 
compact, the Commission is responsible for the comprehensive management 
of all of the basin's resources. While it was reasonable to allow those 
who possess grandfathered benefits to continue their use of them, the 
unfettered transfer of them to subsequent purchasers effectively 
creates a situation of prior appropriation.
    Comment: The federal reservations to the Susquehanna River Basin 
Compact specifically prohibit the Commission from charging for pre-
compact uses of water under Section 3.9 of the compact. Section 3.9 
only allows the Commission to charge for use of its facilities or its 
services. Waters consumptively used are not a product of the Commission 
facilities or services, but are produced by the streams and rivers 
owned by the individual states. There is no basis for charging these 
projects a fee. Finally, grandfathered amounts encourage water 
conservation.
    Response: The fees paid by consumptive users are not made under the 
authority of Section 3.9 of the compact and are therefore not subject 
to the federal reservations regarding charges under Section 3.9 of the 
compact. Instead, these fees are just one of several means of 
compliance with the consumptive use regulation that a project sponsor 
can employ. The Commission places the proceeds of such charges into a 
special water

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management fund where they are used to purchase storage for release 
during low flow and to implement other measures to mitigate the effects 
of consumptive water use. Project sponsors are free to propose other 
means of mitigation.
    Comment: Section 803.4(a)(4) requiring approval of any consumptive 
use that adversely affects purposes outlined in Section 803.2 is overly 
broad and too vague to effectuate compliance because it provides no 
quantitative or qualitative benchmarks.
    Response: Agreed that this paragraph may be overly broad in scope. 
This paragraph has therefore been stricken.
    Comment: In (a) Consumptive use of water, and (b) Withdrawals, 
change the reference to Section 803.12 to Section 803.13.
    Response: Agreed. This cross-reference was incorrect and has been 
changed.
    Comment: The proposal to regulate combined surface and groundwater 
withdrawals of 100,000 gpd or greater brings more withdrawals under 
review and approval, and better enables the Commission to ensure that 
substantial withdrawals do not compromise basin water resources.
    Response: The Commission strongly agrees.
    Comment: Combining groundwater and surface water to reach the 
withdrawal threshold of 100,000 gpd opens the regulatory process to 
include both when only one may be increased. Approval thresholds should 
remain separate.
    Response: The Commission strongly believes that the hydrologic link 
between surface and groundwater justifies combining surface and 
groundwater withdrawals under one regulation that can consider and 
manage their mutual impacts. This conforms to the comprehensive 
management principles set forth in the compact.
    Comment: The combined surface and groundwater requirement will 
force applicants to file two applications and pay two application fees.
    Response: The proposed regulation does not have the effect 
referenced in the comment. If finally adopted, the Commission intends 
to institute a new application system for withdrawals and intends to 
modify its fee schedule to accommodate combined withdrawals.
    Comment: The Commission should exempt the first 20,000 gallons per 
day (gpd) of an into-basin diversion as it has exempted the first 
20,000 gpd of an out-of-basin diversion.
    Response: The Commission does not agree that into-basin diversions 
should also be exempted up to 20,000 gpd. Regardless of quantity, the 
Commission wishes to insure that only water of good quality or properly 
treated water is being diverted into the Susquehanna River Basin. 
Rather than grant a blank exemption, the Commission will consider the 
possibility of a future ``administrative agreement'' or other informal 
arrangement with member states to accept their review and approval of a 
discharge into the basin (diversion) as an approval by the Commission.
    Comment: Diversions should only be approved when the applicant 
demonstrates the clear need and a lack of alternatives.
    Response: The Commission feels that the new regulation, which 
incorporates the Commission's out-of-basin diversion policy, adequately 
covers these criteria with respect to out-of-basin diversions.
    Comment: There are no substantive criteria in 803.4(g) to establish 
a threshold as to when ``other projects'' may be required to submit an 
application.
    Response: This paragraph is in conformance with Section 3.10(3) of 
the compact that grants the Commission and the member jurisdictions the 
broad authority to identify other projects that require Commission 
approval.

Section 803.5 Projects That May Require Review and Approval

    Comment: With respect to (a), terms used such as ``affect 
interstate water quality or interstate waters'' and ``significant 
effect'' are too vague and do not sufficiently establish a quantitative 
standard. There is no requirement to identify which part of the 
comprehensive plan is adversely affected and therefore there is no way 
for an applicant to determine this.
    Response: This is language that simply restates and is consistent 
with the language of the compact, Section 3.10. A project sponsor whose 
project affects the comprehensive plan would be informed about which 
part of the plan is so affected when it is notified in writing by the 
Executive Director under Section 803.4 (g).
    Comment: With respect to (b), there should be a ``pre-determination 
notice'' procedure that would afford a project sponsor the opportunity 
to supplement information, discussion, and technical interaction before 
a determination is made by the Executive Director.
    Response: If the Executive Director is called upon to make a 
determination, he/she will notify the project sponsor to submit such 
information prior to a determination. This will be part of the due 
process automatically afforded a project sponsor and there is no need 
to provide for it separately in the regulation.

Section 803.6 Transferability of Project Approvals

    Comment: Support expressed for limited classes of transfers.
    Comment: The proposed language should be eliminated for the same 
reasons given under the comments submitted on Section 803.4. regarding 
``change of ownership'' and the existing rule regarding transfers 
should be retained. Essentially, restrictions on the transfer of 
Commission approvals create the same burdens on the regulated community 
as described in the comments on Section 803.4 above.
    Response: This section has been extensively revised to now 
generally permit the transfer of project approvals. All transfers would 
require advance notification and certification to comply with all terms 
and conditions of the transferred approval. Transfers qualifying under 
new paragraph (b) can be made automatically without further Commission 
action. Transfers qualifying under new paragraph (c) can be made 
conditionally with a subsequent application to the Commission within 90 
days from the transfer requesting review and approval of previously 
unapproved aspect of the project. Transfers qualifying under new 
paragraph (d) can also be made conditionally with a subsequent 
application to the Commission within 90 days from the transfer 
requesting review and approval of the entire project.

Section 803.7 Concurrent Project Review by Member Jurisdictions

    Comment: Insert the words ``to avoid delays'' after the words ``to 
avoid duplication of work.'' All reviews should be carried on in 
parallel with other agencies so as to avoid any delays in the review 
process.
    Response: The suggested language is seen as unnecessary since it is 
the express purpose of the section.
    Comment: Substitute the words ``appropriate administrative 
agreements'' or ``informal arrangements'' for ``agreements of 
understanding'' and ``agreements'' to be consistent with Section 804.3.
    Response: Agreed.

Section 803.8 Waiver/Modification

    Comment: The ``modify'' portion of this section gives the 
Commission too much discretion to actually change the requirements of a 
regulation that has already been promulgated. Therefore, the references 
to ``modification'' and

[[Page 78574]]

``modify'' in this section should be deleted.
    Response: This section has been a part of the Commission's 
regulations since the first omnibus rulemaking package was adopted in 
1995. It is generally used to relieve project sponsors of unnecessary 
requirements, rather than to place additional requirements upon a 
project sponsor. The Commission expects that this type of use of the 
``waiver'' section will continue, although it reserves the right to use 
such discretion in appropriate circumstances.

Section 803.12 Constant-Rate Aquifer Testing

    Comment: There should be an introductory paragraph that includes a 
statement of purpose.
    Response: The Commission has added additional wording that explains 
the purpose of constant-rate aquifer testing.
    Comment: This section should state that constant-rate aquifer 
testing plans shall be prepared by a qualified and licensed 
professional geologist.
    Response: The Commission defers to state law on this matter. 
Geologists are not formally licensed in New York or Maryland.
    Comment: This section should state that constant-rate aquifer 
testing plans shall follow published Commission guidelines which shall 
be consistent with current industrial standards.
    Comment: Once testing is complete, the Commission should not be 
able to require additional testing or monitoring unless the purposes of 
the first testing have not been met. The specific circumstances 
requiring additional testing should be set forth.
    Response: These comments are addressed in the Commission's revised 
Aquifer Testing Guidance. Testing is conducted to provide a sound 
scientific basis for the Commission's decision regarding a project. 
Additional testing and monitoring is required to confirm assumptions in 
the interpretation of data or to verify system performance.
    Comment: Paragraph (d) allows the Commission to impose arbitrary 
demands for additional testing.
    Response: As is the case with every governmental agency, the 
Commission may not constitutionally impose arbitrary requirements.
    Comment: This section deserves support.
    Response: Agreed.

Section 803.13 Submission of Application

    Comment: Add a new subsection that describes the deadlines to which 
the Commission would be obliged with respect to: (1) Administrative 
completeness; (2) technical reviews of applications; (3) review of 
supplemental submissions required by the Commission; and (4) actions to 
be taken by the Commission.
    Response: The Commission feels that it would be more appropriate to 
address this comment in a set of accompanying guidelines rather than in 
the regulation itself.
    Comment: In paragraph (b), how will a transferee of a project know 
that it is to comply with all of the requirements to certify an 
intention to comply and assume all associated obligations?
    Response: This provision has been relocated to Sec. 806.6. The 
Commission will make available appropriate notification and 
certification forms to assist transferees in complying with the 
requirements.
    Comment: In paragraph (c), the Commission should impose a time 
limit on itself to determine the completeness of an application.
    Response: The provision has been deleted.

Section 803.14 Contents of Application

    Comment: Applications by project sponsors should demonstrate the 
consistency of projects with locally adopted comprehensive plans and 
with state water plans.
    Response: The notice of application procedure, which covers 
notification to local municipalities and county planning agencies, 
provides an ample opportunity for those entities to submit comments to 
the Commission on the consistency of the projects with local plans. The 
Commission coordinates with state agencies on each project application, 
providing the states with an opportunity to comment on the consistency 
of the projects with any of their water plans.
    Comment: Some items that are now required to be provided in project 
applications are made discretionary on the part of the Commission in 
the new regulations. Many of these items provide information relevant 
to whether a proposed project impacts water resources of the basin. 
These should continue to be mandated.
    Response: The regulation has been restructured to mandate certain 
information that is uniformly applicable to all projects. The 
informational requirements listed as discretionary are also important, 
but not all are necessary for all projects. The Commission believes 
some discretion is needed to tailor informational needs on a case-by-
case basis.
    Comment: Applications should not be deemed incomplete if they lack 
a plan for avoiding or mitigating consumptive use because large volume 
consumptive use may be a legitimate purpose. Instead preface with 
statement ``As may be appropriate, depending upon the nature of the 
project, plans for avoiding * * * (etc)''.
    Response: Mitigation is one of the fundamental purposes of the 
consumptive use regulation. It is essential that a project sponsor 
develop a plan for mitigating its consumptive use. Development of a 
plan does not in any way imply that the use is not legitimate.
    Comment: Two additional subsections should be added to allow the 
applicant to provide information regarding: (1) The benefits of the 
project; and (2) plans to mitigate adverse impacts of potential adverse 
effects.
    Response: The project sponsor may, as it chooses, submit this 
information to the Commission. There is no need to make it a required 
submission.
    Comment: Add a new item (xi) Evidence of compliance with all 
registration requirements of the Commission and the appropriate member 
jurisdictions.
    Response: Agreed.
    Comment: In (a)(2)(i), the project location should be determined by 
gps accurate to 10 meters.
    Response: Agreed.
    Comment: Paragraph (a)(2)(v) would seem to allow a requirement for 
a constant-rate aquifer test even if the application is for surface 
water, and it is the surface water application that causes the combined 
request to exceed 100,000 gpd.
    Response: Commission staff will take into account such situations 
and, as appropriate, recommend a waiver of the constant-rate aquifer 
test.
    Comment: With respect to paragraph (a)(3)(ii), is a PNDI being 
required?
    Response: The Commission currently conducts a review for threatened 
or endangered species and their habitats. Under the new regulations, 
the project sponsor will submit this information with the application.
    Comment: With respect to (b)(1)(ii), under what authority can the 
Commission require information on the ability of a project sponsor to 
fund a project?
    Response: This is a necessary and convenient power under Section 
3.4 (8) to reasonably ascertain the financial ability of the project 
sponsor to carry out a project in a manner to be approved by the 
Commission, including any conditions that the Commission may impose. 
This authority is only exercised in very limited situations.

[[Page 78575]]

    Comment: With respect to (b)(1)(iii), relating to the 
identification of alternatives, what is a reasonable alternative? Will 
there be any guidance in this regard?
    Response: Reasonable in this context refers to alternatives that 
may be appropriate for a particular situation. Commission staff will 
provide guidance and consultation as needed.
    Comment: With respect to (b)(1)(iv), will the Commission maintain 
an inventory of anticipated uses?
    Response: It is not necessary for the Commission to maintain such 
an inventory. Existing and anticipated uses should be identifiable by 
project sponsors or their consultants in each situation. For example, 
if the project is proposed for an area that has experienced rapid 
growth, anticipated uses should be evident, or reasonably discernable.
    Comment: With respect to paragraph (3), it is much too open ended, 
allowing the Commission to ask for anything it deems necessary without 
limit.
    Response: Again, as in any action it takes as a government agency, 
the Commission must act reasonably. Under constitutional law 
principles, there must be a rational relationship between what 
regulatory actions the Commission takes and a legitimate regulatory 
objective.
    Comment: The regulations should continue the requirement for 
submission of comprehensive information about potential impacts of 
withdrawals and availability of alternatives, rather than allow its 
submission to be discretionary on the part of the Commission.
    Response: Again, the regulation has been restructured to mandate 
certain information that is uniformly applicable to all projects. The 
informational requirements listed as discretionary are also important, 
but not all are necessary for all projects. The Commission believes 
some discretion is needed to tailor informational needs on a case-by-
case basis.
    Comment: There should be compatibility with regional and state Act 
220 plans.
    Response: The Commission routinely coordinates its approvals with 
its member jurisdictions. The project sponsor is required to give 
notice to the municipality and county planning agency of its 
application for approval, thereby providing an opportunity for local 
and regional interests to comment on the compatibility of projects.

Section 803.16 Completeness of Application

    Comment: Add a statement providing that the Commission will provide 
the project sponsor with either a formal notice of administrative 
completeness, or a deficiency notice within a prescribed time.
    Response: The Commission currently provides deficiency notices, 
when appropriate, as reviews are undertaken.

Section 803.21 General Standards

    Comment: Omit the sentence containing the subjective terms 
``detrimental'' and ``proper.''
    Response: The wording comes directly from the compact.
    Comment: The words ``modify and approve as modified'' should be 
rephrased to ``With the applicant's consent, the Commission may modify 
* * *'' Only the applicant should have the right to modify a project, 
not the Commission.
    Response: Again, the wording comes directly from the compact. Also, 
this sentence is not meant to imply that the Commission would 
unilaterally modify a project without prior notice. It may condition 
its approval on the project sponsor making a modification or 
incorporating a condition that would help meet a Commission regulatory 
objective, but the Commission would not unilaterally modify a project 
without prior notice and an opportunity to be heard.
    Comment: Add a new subsection that requires that Commission staff 
provide a draft docket to project sponsors at least 10 days in advance 
of Commission action on that docket. If the staff is recommending 
modifications, they should be required to provide the reasons for the 
recommended modifications in writing with quantitative analysis.
    Response: The Commission strives to provide project sponsors with a 
draft docket as far in advance of final Commission action as possible. 
However, due to fluctuations in the number and complexity of dockets 
before the Commission at any particular meeting, a guarantee of ten 
(10) days advance review is not possible in all cases.
    Comment: The Commission should not suspend review or revoke 
approval due to the disapproval of another government agency, 
especially when what some other agency is deciding has little or 
nothing to do with the water resources of the project. Furthermore, 
this provision seems to limit the Commission's power to preempt 
municipal regulations that, at least under Pennsylvania Law, illegally 
attempts to regulate water withdrawals. Instead of suspending review, 
the Commission should proceed expeditiously with its review and 
approval process and simply condition its approval on the applicant 
obtaining and retaining all other applicable approvals.
    Response: The Commission will not suspend its review or approval of 
a project in response to the illegal exercise of authority by another 
governmental jurisdiction. However, it makes sense to coordinate 
Commission review and approval actions with other governmental 
jurisdictions. By the same token, it makes little sense for the 
Commission to expend staff resources on the review of projects that 
have been rejected by other governmental jurisdictions and cannot, 
therefore, be implemented.
    Comment: This section should be supported because it allows the 
Commission to streamline its decision making with other government 
entities involved in project review.
    Response: Agreed. See response to prior comment.
    Comment: Should include language acknowledging the importance of 
economic interests of the applicant, community, region, etc.
    Response: See above responses regarding purposes of the 
regulations.

Section 803.22 Standards for Consumptive Uses of Water

    Comment: Eliminating the Q7-10 trigger flow for providing makeup 
during periods of low flow leaves too much discretion to SRBC and 
leaves no guidance to project sponsors to determine risk and costs.
    Response: The elimination of the Q7-10 trigger flow criterion 
effectively changes little because few consumptive use projects 
approved by the Commission are now tied to this criterion. Most project 
sponsors opt for payment of the consumptive use fee as a means of 
compliance rather than release storage or shut down during low flow 
periods. When the Commission does set a low flow criterion, it does so 
on a case-by-case basis using modern assessment techniques that allow 
the Commission to more accurately assess the particular needs of the 
affected stream. The Commission establishes passby flow requirements 
the same way. In cases involving a consumptive use as well as a 
withdrawal, the established passby flow serves as the low flow 
criterion for a project. In the rare event that a flow criterion is set 
for a particular project, it will be done only after the project 
sponsor is given the

[[Page 78576]]

opportunity at a public hearing to submit information and make relevant 
arguments regarding the establishment of a flow criterion for its 
project. The criterion will not be established arbitrarily and without 
notice and opportunity for response.
    Comment: ``Sole Discretion'' language too open ended and must 
incorporate reasonableness.
    Response: See responses above to allegation that the Commission may 
act arbitrarily under these proposed regulations.
    Comment: Support expressed for the approval by rule procedures as a 
means of streamlining the approval process.
    Response: The Commission agrees.
    Comment: Section 803.22 (b)(4) is inconsistent with the other 
alternatives provided under (b).
    Response: Agreed. It has been made a separate item.
    Comment: With respect to (b)(1)(ii), an explanation should be 
included as to why a project may be required to reduce its withdrawal 
to an amount greater than its consumptive use.
    Response: Agreed. The words ``or greater than'' have been removed.
    Comment: Eliminate mitigation requirement.
    Response: Mitigation of consumptive use is a fundamental purpose of 
the consumptive use regulation and an element of the regulation that 
comes directly from the Commission's comprehensive plan. Eliminating 
mitigation requirements essentially would ignore the provisions of the 
comprehensive plan.
    Comment: On the approval by rule provision, the Commission should 
provide for a 30- to 60-day notification instead of 90 days.
    Response: The Commission feels that the 90-day notification is 
appropriate for qualified projects.

Section 803.23 Standards for Water Withdrawals

    Comment: SRBC withdrawal regulations relating to the protection of 
existing users should make clear that inefficient existing sources of 
water may not necessarily be protected.
    Response: The Commission does not wish to imply that it will 
protect existing users under all circumstances, thus in effect granting 
a prior appropriation of water, which is prohibited under the compact.
    Comment: Section 803.23(b)--Add the word ``significant'' before the 
words adverse impacts.
    Response: Agreed. This will remove the implication that a de 
minimis adverse impact will form the basis for some limitation or 
condition.
    Comment: Section 803.23(b)(2)--Add ``Commission may consider and 
balance.''
    Response: As it has always done, the Commission will carefully 
weigh the necessity of any requirement or limitation that it imposes 
versus the benefit to be achieved.
    Comment: Section 803.23(b), that allows the Commission to deny, 
limit or condition an approval to insure no adverse impact, incorrectly 
suggests that lowering of groundwater levels and stream flow levels is 
an adverse impact. These may be perfectly legitimate occurrences in 
connection with use of an aquifer.
    Response: The Commission has added ``significant'' before the words 
``adverse impact'' to remove the implication that a de minimis adverse 
impact will form the basis for some limitation or condition.
    Comment: In Section 803.23(b), the Commission should not accord 
protection status to intermittent streams, as such protection would 
unduly restrict the use and potential of aquifers that can be used as 
groundwater reservoirs to provide economically important water 
supplies.
    Response: The Commission believes that headwaters must be carefully 
managed to insure a proper balance of sustainable development, 
responsible use, and conservation. Intermittent streams are not 
afforded special protection; however, Commission staff does evaluate 
for potential adverse impacts. The withdrawal of large quantities of 
groundwater from small headwater basins can dewater springs and 
wetlands, and reduce the groundwater contribution (base flow) to 
headwater streams. This can change the previous intermittent reaches to 
ephemeral reaches and the uppermost perennial reaches to intermittent 
reaches. While the loss of perennial stream length is generally a small 
fraction of the entire stream, it often represents the most pristine 
portion of the watershed with respect to water quality and habitat.
    Comment: The Commission needs to define the term ``low flow.'' The 
most logical definition is the Q7-10 low flow. To protect stream flows 
at any higher level would unduly restrict the use and potential of 
aquifers that can be used as reservoirs for economically important 
activities.
    Response: The Commission sets low flow criteria on a case-by-case 
basis using modern assessment techniques to accurately assess the 
particular needs of the affected stream. The Commission will carefully 
weigh any limitation it imposes versus the benefit to be achieved.
    Comment: The Commission should provide its regulatory requirements 
concerning the establishment of passby standards in Section 803.23. The 
current practice of setting a passby standard at 20 percent of average 
daily flow is not a fair, reasonable and appropriate approach to 
balancing the need to allow a beneficial stream withdrawal with the 
need to protect the stream ecology.
    Response: The Commission has incorporated passby standards in 
guidelines that it makes available to all applicants. The Commission 
sets a low flow criterion based on the particular needs of the stream, 
the best available science, and on a case-by-case basis. Instream needs 
are assessed using standard methodologies and can always be refined by 
local studies. Incorporating the standards in guidance enables the 
Commission to periodically update those standards as new science 
emerges.
    Comment: The Commission should define terms such as ``adverse 
impact, aquatic habitat and water quality degradation.''
    Response: The latter two items, as used in Section 803.23, are 
listed only as possible indicators of adverse impacts that the 
Commission may consider in each individual case or circumstance. It is 
not necessary or desirable to place specific weight or limiting 
criteria on factors that are merely indicators of possible adverse 
impacts. The term ``adverse impacts'' or ``adverse effect'' comes 
directly from the language of Section 3.10 of the Susquehanna River 
Basin Compact granting authority to the Commission to review and 
approve projects that may cause an adverse effect.
    Comment: In 803.23(b)(3), make it clear that the applicant shall 
have the right to propose mitigation measures to offset potential 
adverse impacts of the proposed project.
    Response: The Commission encourages a project sponsor to propose 
mitigation for any potential adverse impacts in its application(s). 
Further, the Commission carries on an active dialogue with project 
sponsors during the review process, and the project sponsor is free at 
that time to propose any reasonable form of mitigation.
    Comment: A decision to deny, modify or conditionally approve a 
withdrawal project should be accompanied by a technical evaluation that 
is provided to the project sponsor in a timely manner to allow sponsor 
to rebut the conclusions or revise its application to address concerns 
raised by the Commission.

[[Page 78577]]

    Response: As stated above, the Commission carries on an active 
dialogue with the project sponsor during the review process that allows 
for an exchange of information on staff conclusions and concerns, and 
how such concerns may be resolved.
    Comment: The Commission should consider a new MOU with DEP Mining 
to avoid the ``double jeopardy'' concern.
    Response: The proposed Section 803.7 provides for administrative 
agreements or other cooperative arrangements with agencies of the 
member jurisdictions. The Commission anticipates that existing 
agreements will be reconsidered following adoption of the new 
regulations.

Section 803.24 Standards for Diversions

    Comment: This section should be supported or even strengthened to 
explicitly state that an applicant for a diversion must demonstrate 
``by clear and convincing evidence'' a need for the diversion.
    Response: The Commission believes that the language proposed 
ensures that the project sponsor will be required to adequately 
demonstrate a need for the diversion without the formal inclusion of an 
evidentiary standard that may be subject to further construction or 
interpretation.

Section 803.25 Water Conservation Standards

    Comment: AWWA standards should be used for customer meter testing 
under Section 803.25(a)(2). Is the definition for ``flow control 
device'' correct?
    Response: The water conservation standards were taken directly from 
the current regulations. The Commission intends to revisit this section 
in the future and will evaluate the published standards at that time.

Section 803.30 Monitoring

    Comment: The Commission should accept testing and monitoring done 
in accordance with member state standards when the state has a parallel 
or equally stringent procedure.
    Response: The water conservation standards were taken directly from 
the current regulations. The Commission intends to revisit this section 
in the future and will evaluate the published standards at that time.
    Comment: The Commission should consider whether PWS source meters 
should be certified annually, rather than every five years, with a 
possible exception for agriculture.
    Response: The regulations set the minimum standard for all 
projects. The Commission can specify certification more frequently than 
once every five (5) years for source meters of public water suppliers 
if warranted, or as required in other permits.
    Comment: In Section 803.30 (b)(2)(ii), a monitoring loss should be 
reported within five days of such loss, regardless of the length of 
time the loss continues.
    Response: Agreed.
    Comment: The Commission should continue to mandate that project 
sponsors monitor the water quality impacts of their withdrawals to help 
the Commission fulfill the compact purposes of ``stream quality 
control'' and the ``abatement of pollution.''
    Response: The requirement to collect water quality data was 
burdensome for the project sponsor, burdensome for Commission staff to 
review and maintain, and it is generally not used by Commission 
programs because similar data are available from other sources, 
particularly from its member jurisdictions, each of which administers a 
comprehensive water quality program. The Commission reserves the right 
on any given application to require water quality sampling, if water 
quality is an issue.

Section 803.31 Duration of Approvals and Renewals

    Comment: The Commission should not be reducing the duration of 
approvals from 25 years to 15 years. Many water resources projects 
involve large investments of money and many years of planning that are 
not well accommodated by an approval of 15 years. Instead, the 
Commission should rely on its authority to reopen a docket if there is 
a potential problem. The Commission should not have deleted the 
language that appears in the existing regulations allowing the 
Commission ``to modify this duration in consideration of such factors 
as the time needed to amortize a project investment, the time needed to 
secure project financing, the potential risks of interference with an 
existing project, and other equitable factors.''
    Response: The Commission has found that both projects and the water 
resources that serve them are subject to many changes over 25 years 
and, therefore, it is appropriate to review these applications on a 
more frequent basis. The Commission agrees to reinsert the deleted 
language allowing the Commission to modify the standard duration, when 
appropriate, in consideration of the factors enumerated in this 
comment.
    Comment: The time for commencement of a project after approval 
should take into account that some large projects require longer 
permitting periods and longer construction times. Opponents sometimes 
attempt to delay projects using administrative appeals and other 
devices that can prevent a large project from commencement.
    Response: The Commission agrees that there may be circumstances in 
which a longer time frame is needed for undertaking a project. The 
Commission is inserting language that will allow adjustments to this 
time limit on a case-by-case basis.
    Comment: The submission of an application one year in advance for 
the renewal of an approval is too long and unneeded.
    Response: The time was set to afford both the project sponsor and 
Commission staff sufficient time to evaluate changes to the project and 
changes to the resource, and is reasonable considering current review 
times. Having said that, the Commission is nonetheless willing to 
modify the period to six (6) months. As modified, a project sponsor who 
submits a complete application six (6) months in advance, is given the 
benefit of having an existing approval automatically extended until 
such time as the Commission renders a decision on the new application. 
This eliminates the risk of having an approval expire before the 
Commission has an opportunity to act.
    Comment: In (a), the reduction of the duration of approvals to 15 
years is appropriate. In fact, 10 years would be more appropriate.
    Response: The Commission agrees that the reduction of the term to 
15 years is appropriate so that commitment of water to a particular use 
can be reviewed more frequently and any changes in conditions can be 
addressed sooner.
    Comment: In (c), there should be a notification to the state agency 
with jurisdiction over the project, at the time a waiver is applied 
for.
    Response: The Commission routinely coordinates with member 
jurisdictions on such project-related matters.
    Comment: How will the Commission fund the increased workload 
resulting from shorter duration periods?
    Response: The Commission has no special plans for funding any 
increase in workload resulting from a shorter approval term. The member 
jurisdictions who approve the Commission's budget will need to consider 
any such increased workload associated with the completion of the 
Commission's responsibilities under the compact.

[[Page 78578]]

    Comment: With respect to paragraph (d), abandonment should have to 
be proven by the Commission and not inferred. Notice should be provided 
to the project sponsor.
    Response: Under general legal principles, any inference of 
abandonment acted upon by the Commission will have to be supported by 
substantial evidence and appropriate notice and opportunity to be 
heard. There is no need for the wording suggested by this comment.
    Comment: Application fees should be adjusted downward to account 
for shorter durations.
    Response: The main purpose of shortening the term of approvals is 
not to realize more revenues from project review fees. In fact, these 
fees cover no more that half the cost of conducting a review. Project 
reviews conducted on a more frequent basis will actually involve 
increased costs that will more than offset any increased revenues from 
application fees.

Section 803.32 Reopening/Modification

    Comment: In (a), the word ``significant'' should be substituted for 
the word ``substantial'' before the words ``adverse impact.''
    Response: Agreed.
    Comment: In (c), the Commission should retain the discretion to 
require a project sponsor to provide a temporary source of potable 
water at the project sponsor's expense, if interference should occur 
during a pumping test of a source under development.
    Response: Agreed.
    Comment: The language of 803.32(b) is too strong in that it does 
not spell out how to remedy situations where a project sponsor fails to 
comply with a term or condition of its docket approval.
    Response: The remedy will be worked out administratively between 
the Commission and the project sponsor without providing for a specific 
remedy in the regulation.

Section 803.33 Interest on Fees

    Comment: Rate should be established and equally imposed.
    Response: Interest rates change as they are affected by market 
forces and therefore should not be set permanently by regulation. 
Whatever rate is established will be uniformly imposed.

Section 803.34 Emergencies

    Comment: In (b), at the end of the paragraph, delete the word 
``information'' before the colon. Also, in (b)(2), delete the word 
``information'' following the word ``application.''
    Response: Agreed.
    Comment: In (b)(1), replace ``an emergency'' with ``a completed 
emergency'' before the words ``application form.''
    Response: Agreed.
    Comment: In (b)(2)(x), because of the immediate inclusion of an 
application fee may delay submittal of an emergency application, 
provision should be made in the regulation for reduction, waiver, or 
later submittal of an ``appropriate'' fee.
    Response: Agreed; however, this is a change that can be made in the 
SRBC Project Fee Schedule, rather than these regulations.

Comments by Section, Part 804

Section 804.2 Time Limits

    Comment: Registration language strongly supported.
    Response: Agreed.

Section 804.3 Administrative Agreements

    Comment: Add the following: ``In conjunction with such agreements 
or arrangements, the Commission will require submission of all 
necessary registration forms to the member jurisdiction as part of a 
complete application for renewal of an existing project or new or 
expanded agricultural project or as a condition of approval of any 
other new or expanded project.''
    Response: Although not using this suggested language, the 
Commission has revised this section and renamed it ``Administrative 
coordination'' to address this comment.

Comments by Section, Part 805

Section 805.1 Public Hearings

    Comment: Participants to a hearing should be limited to interested 
parties.
    Response: Who is able to participate in a hearing will depend on 
the circumstances and will be controlled by a decision of the presiding 
officer.
    Comment: Notice of hearings should continue to be posted at 
Commission offices.
    Response: Agreed.
    Comment: Why does the Commission need three days notice?
    Response: This is not mandated by the regulation but is more in the 
form of a request to participants. Three days allows the Commission to 
assemble a list of participants and establish an order of call for 
those wishing to provide testimony.

Section 805.2 Administrative Appeals

    Comment: Administrative hearings should be held in the state where 
the project or controversy is located. Also, the Commission should 
appoint an ``impartial'' hearing officer who shall not be a member of 
the Commission or an officer of the Commission. The Commission should 
absorb all hearing costs.
    Response: Wherever practicable, the Commission will conduct such 
hearings in the general vicinity where the project or controversy is 
located. The Commission will also take steps to insure the impartiality 
of the hearing officer. Such steps do not require, however, that the 
Commission automatically disqualify members of the Commission or 
officers of the Commission. Hearing officers only make findings of fact 
and law that serve as recommendations to the Commission. The ultimate 
decision in any matter rests with the Commission. With respect to 
costs, they should be distributed equitably and not assigned 
automatically to any single party. The Commission has included an in 
forma pauperis procedure in Section 805.3 for parties who genuinely 
cannot pay hearing costs and have acted in good faith.
    Comment: Parties should have at least 60 days to file an 
administrative appeal, rather than the 30 days given in proposed 
Section 805.2. Sometimes there is delay in a party learning of a 
Commission decision, effectively reducing the time for appeals.
    Response: The Commission feels that thirty (30) days strikes the 
appropriate balance for having its action open for appeal.

Section 805.3 Hearing on Administrative Appeal

    Comment: Cost of expert consultants should be paid by the 
Commission.
    Response: Again, the presiding officer should be able to weigh the 
equities of assigning costs for a hearing without being bound by a 
specific rule, some of which may be assigned to the Commission.

Section 805.10 Scope of Subpart

    Comment: Regulated entities should be legally obligated to meet the 
terms and conditions for their approvals and SRBC must have the 
authority to ensure that they do.
    Response: The Commission strongly agrees and that is why the 
compliance and enforcement provisions of these regulations have been 
strengthened.

Section 805.12 Investigative Powers

    Comment: The Commission does not have authority from the compact to 
provide for warrantless searches.
    Response: Agreed. This provision will be stricken. The Commission 
will acquire an administrative search

[[Page 78579]]

warrant whenever it is legally required to do so.
    Comment: Strongly supported as necessary for the Commission to 
effectively enforce its regulations.
    Response: The Commission strongly agrees.

Section 805.14 Orders

    Comment: The Commission does not have authority from the compact to 
issue orders.
    Response: As noted in the Commission's response to the general 
comments, the Commission strongly disagrees with this contention. The 
Susqueha