Review and Approval of Projects; Hearings and Enforcement Actions, 29387-29397 [2017-13324]
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Federal Register / Vol. 82, No. 124 / Thursday, June 29, 2017 / Rules and Regulations
of an evidentiary hearing. However,
depending on the particular facts and
circumstances, the hearing may be
analogous to a fact-finding proceeding
with oral presentations; or an informal
meeting with or interview of the
employee; or formal written
submissions, with an opportunity for
oral presentation, and decision based on
the available written record. Ordinarily,
hearings may consist of informal
conferences before the hearing official
in which the employee and Agency
officials will be given full opportunity
to present evidence, witnesses, and
argument. The employee may represent
himself or herself or be represented by
an individual of his or her choice at no
cost to the United States. The hearing
official must maintain or provide for a
summary record of the hearing provided
under this subpart. The decision of the
reviewing/hearing official should be
communicated in writing (no particular
form is required) to the affected parties
and will constitute the final
administrative decision of the Agency.
(b) Paragraph (a) of this section does
not require a hearing with respect to
debt collection systems, as
determinations of indebtedness or
waiver from these rarely involve issues
of credibility or veracity since NASA
has determined that review of the
written record is ordinarily an adequate
means to correct prior mistakes. See 31
CFR 901.3(e)(3).
(c) In those cases where a live,
telephonic, or video-teleconference
hearing is not required or granted,
NASA will nevertheless accord the
debtor an opportunity to submit any
position regarding the matter by
documentation and/or written
presentation—that is, the Agency will
make its determination on the request
for waiver or reconsideration based
upon a review of the available written
record. See 31 CFR 901.3(e)(4). In such
case, the responsible official or designee
shall refer the request to the appropriate
NASA Office of General Counsel or
Chief Counsel for review and
recommendation.
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25. Amend § 1261.507 by revising
paragraph (e)(3) to read as follows:
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■
§ 1261.507 Civil Service Retirement and
Disability Fund.
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(e) * * *
(3) Provide or not provide a live,
telephonic, or video-teleconference
hearing.
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Subpart 1261.6—Collection by Offset
From Indebted Government Employees
26. Amend § 1261.601 by revising
paragraph (b)(2) to read as follows:
■
§ 1261.601
Scope of subpart.
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(b) * * *
(2) Waiver requests and claims to the
Government Accountability Office. This
subpart does not preclude an employee
from requesting waiver of a salary
overpayment under 5 U.S.C. 5584, 10
U.S.C. 2774, or 32 U.S.C. 716, or in any
way questioning the amount or validity
of a debt by submitting a subsequent
claim to the Government Accountability
Office in accordance with procedures
prescribed by the Government
Accountability Office. Similarly, in the
case of other types of debts, it does not
preclude an employee from requesting
waiver, if waiver is available under any
statutory provision pertaining to the
particular debt being collected.
■ 27. Amend § 1261.603 by revising the
introductory text and paragraphs (a)
introductory text and (c)(2) and (5),
removing paragraphs (c)(6) through (8),
and revising paragraph (e) to read as
follows:
§ 1261.603
Procedures for salary offset.
If NASA determines that a Federal
employee is indebted to the United
States or is notified of such by the head
of another agency (or delegee), the
amount of indebtedness may be
collected in monthly installments, or
regularly established pay intervals, by
deduction from the affected employee’s
pay account. The deductions may be
made from basic pay, special pay,
incentive pay, retired pay, retainer pay,
or in the case of an employee not
entitled to basic pay, from other
authorized pay. The requirements in
paragraphs (a) through (h) of this section
must be met before a deduction is made
from the current pay account of an
employee.
(a) Written notice. The employee must
be sent a minimum of 30 days written
notice prior to further offset action,
which specifies:
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(c) * * *
(2) The petition should be addressed
to the Agency counsel designated in the
notice, but the hearing will be
conducted by an official not under the
supervision or control of the NASA
Administrator. The Agency Chief
Financial Officer is authorized to
appoint an administrative law judge or
other Federal executive branch
employee or official on a reimbursable
or other basis. Notice of the name and
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29387
address of the hearing official will be
sent to the employee within 10 days of
receipt of petition.
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(5) As for the conduct of any live,
telephonic, or video teleconference
hearing, for additional guidance see 14
CFR 1261.503.
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(e) Limitation on amount and
duration of deductions. Ordinarily,
debts are to be collected in one lumpsum payment. However, if the employee
is financially unable to pay in one lump
sum or if the amount of the debt exceeds
15 percent of disposable pay for an
officially established pay interval,
collection must be made in installments.
The size of installment deductions must
bear a reasonable relationship to the size
of the debt and the employee’s ability to
pay (see 14 CFR 1261.411), but the
amount deducted for any period must
not exceed 15 percent of the disposable
pay from which the deduction is made
(unless the employee has agreed in
writing to the deduction of a greater
amount). Deduction must commence
with the next full pay interval
(ordinarily, the next biweekly pay
period). Such installment deductions
must be made over a period not greater
than the anticipated period of active
duty or employment, as the case may be,
except as provided in paragraph (f) of
this section.
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Nanette Smith,
NASA Federal Register Liaison Officer.
[FR Doc. 2017–13421 Filed 6–28–17; 8:45 am]
BILLING CODE P
SUSQUEHANNA RIVER BASIN
COMMISSION
18 CFR Parts 806 and 808
Review and Approval of Projects;
Hearings and Enforcement Actions
Susquehanna River Basin
Commission.
ACTION: Final rule.
AGENCY:
This document contains rules
that would amend the regulations of the
Susquehanna River Basin Commission
(Commission) to clarify application
requirements and standards for review
of projects, add a subpart to provide for
registration of grandfathered projects,
and revise requirements dealing with
hearings and enforcement actions.
These rules are designed to enhance the
Commission’s existing authorities to
manage the water resources of the basin
and add regulatory clarity.
SUMMARY:
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This rule is effective July 1,
2017, except for the amendments to
§ 806.4(a)(1)(iii) and (a)(2)(iv) and the
addition of subpart E to part 806 which
are effective January 1, 2018.
ADDRESSES: Susquehanna River Basin
Commission, 4423 N. Front Street,
Harrisburg, PA 17110–1788.
FOR FURTHER INFORMATION CONTACT:
Jason E. Oyler, Esq., General Counsel,
telephone: 717–238–0423, ext. 1312;
fax: 717–238–2436; email: joyler@
srbc.net. Also, for further information
on the final rulemaking, including the
comment response document, visit the
Commission’s Web site at www.srbc.net.
SUPPLEMENTARY INFORMATION: Notice of
proposed rulemaking was published in
the Federal Register on September 21,
2016 (81 FR 64812); New York Register
on October 5, 2016; Pennsylvania
Bulletin on October 8, 2016; and
Maryland Register on October 14, 2017.
The Commission convened four public
hearings: On November 3, 2016, in
Harrisburg, Pennsylvania; on November
9, 2016, in Binghamton, New York; on
November 10, 2016, in Williamsport,
Pennsylvania; and on December 8, 2016,
in Annapolis, Maryland. A written
comment period was held open through
January 30, 2017.
The Commission received 14 written
public comments in addition to
testimony received at the public
hearings. The Commission has prepared
a comment response document, which
is available to the public at
www.srbc.net. Comments that led to a
change to the proposed rulemaking and
their responses are discussed below.
DATES:
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Registration of Grandfathered Projects,
Subpart E and § 806.4(a)(1)(iii) and
(a)(2)(iv)
Comment: The Commission should
allow projects to register a
grandfathered amount previously
determined by the Commission if it is
not seeking a higher amount through the
registration process.
Response: The Commission agrees
that previous grandfathering
determinations should be honored if the
project wishes to register that amount. A
new paragraph (c) is added in § 806.44
allowing the Executive Director to use
past grandfathering determinations, and
revisions are made to § 806.42(b)
allowing the Commission to waive
certain registration information if a
project is relying on a past
grandfathering determination.
Comment: Ongoing reporting
requirements need to be linked to
member jurisdiction reporting to avoid
duplication of effort and confusion.
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Response: The Commission agrees
with the commenter that it is important
to avoid unnecessary duplication of
effort with state law requirements.
Section 806.43(c) notes that if quantity
reporting is required by the member
jurisdiction where the project is located,
the Commission may accept that
reporting to satisfy the requirements of
this paragraph. This evidences the
Commission’s intent to use its best
efforts to accept state reporting
requirements where appropriate. The
Commission will add language to
§§ 806.42(a)(6) and 806.43(c) to clarify
its intention to rely on member
jurisdiction reporting where it is able,
and that any additional reporting
required will be because it is not
duplicated by the member jurisdiction.
A new § 806.43(d) is added to
emphasize the commitment of the
Commission and its member
jurisdiction to share all reporting data
and to further the goal of creating a
unified data set for all agencies
involved.
Comment: The proposed rule at
§ 806.4(a)(1)(iii)(A) and (a)(2)(iv)(A)
changes the current rule that allows a
grandfathered consumptive use an
additional increase of up to 20,000 gpd
and a grandfathered withdrawal an
additional increase of up to 100,000 gpd
before review and approval of the
grandfathered activity is triggered. This
leeway should be restored for
grandfathered projects.
Response: In most instances, the
registration process will allow
grandfathered projects sufficient margin
for operational flexibility. However, the
Commission agrees that the registration
process should not put a project in
jeopardy of needing review and
approval subsequent to registration
absent a change to the project. A new
factor is added as § 806.44(b)(4) that
allows the Executive Director to
consider whether the grandfathered
amount includes an operational margin
of safety.
Comment: The proposed rule
provides that the determination of the
grandfathered quantity will be based on
the most recent data. This may be too
restrictive and projects should be
allowed to submit more than the last
five years of data and where such data
is submitted, the Executive Director
should base the determination under
§ 806.44 on the peak 30-day average for
withdrawals and consumptive uses
shown by the data.
Response: The Commission agrees
that the factor as written could be
clarified and the final rule reflects a
revision to § 806.44(b)(1) to allow more
than a minimum of five years of data to
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be submitted and that the Executive
Director will consider the withdrawal
and use data and the peak consecutive
30-day average shown by all the data
submitted.
Consumptive Use Mitigation, § 806.22
Comments: The Commission should
not adopt the Consumptive Use
Mitigation Policy and the changes to the
Consumptive Use Mitigation Rule.
The Commission should not shift the
responsibility for physical consumptive
use mitigation to project sponsors
because project sponsor based
mitigation will be more balkanized and
less effective and the Commission has
powerful tools to set up projects to
provide such mitigation from the
Compact.
The mitigation plan proposal should
be removed or smaller projects should
be able to have an abbreviated
consumptive use mitigation alternative
analysis.
New consumptive use mitigation
requirements should not be applied
retroactively to existing projects upon
renewal.
The proposed rule should be revised
to allow greater use of groundwater
storage and quarries and be more
flexible with respect to the ‘‘no
impacts’’ to surface water requirements
for such mitigation.
The Commission should focus its
mitigation requirements to the low flow
period.
All references to water critical
planning areas should be removed.
Article 11 of the Compact provides for
designation of protected areas. This
concept appears to circumvent those
procedures.
Water critical areas should not be
based on member jurisdiction planning
areas and it should not be a mechanism
to require mitigation for pre-compact
consumptive use.
Response: The Commission has
reviewed the detailed comments
regarding how the Commission requires
consumptive use mitigation and the
options of projects to provide such
mitigation. The Commission will further
examine and reevaluate its policies and
procedures for consumptive use and
consumptive use mitigation in a more
comprehensive fashion. As a result, the
Commission will not move forward with
the changes to the Consumptive Use
Mitigation Policy and the consumptive
use mitigation rule as follows. The
definition of ‘‘water critical area’’ in
§ 806.3 is removed and all references to
water critical areas are removed from
§§ 806.22 and 808.1. The reference and
changes associated with a mitigation
plan in § 806.22(b) are removed. The
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changes associated with amending the
90 day mitigation requirement to 45
days in § 806.22(b)(1)(i) and (ii) are
removed and reserved for the
reevaluation process for consumptive
use mitigation described above.
Project Review Application Procedures
and Standards for Review and
Approval—18 CFR Part 806, Subparts B
and C
Comment: The Commission should
clarify how the alternatives analysis
under § 806.14(b)(2)(v) differs from the
previous provision in the current rules
at § 806.14(b)(1)(iii) and specify what is
expected from applicants.
Response: The purpose for this
requirement is to document the project
sponsor’s consideration of alternatives
during planning of the proposed project
to include, but not be limited to,
identification of reasonable alternatives
to the proposed water withdrawal
project, the extent of the project
sponsor’s economic and technical
investigation, the adequacy of the
source to meet the demand, an
assessment of the potential
environmental impact, and measures for
avoidance or minimization of adverse
impact of each alternative. Specifically,
the alternatives analysis should include
identification of reasonable alternative
water sources and locations, including
opportunities for uses of lesser quality
waters; project footprint and
infrastructure; opportunities for water
conservation or water saving
technology; requirements of the uses of
the water as related to the proposed
locations; the economic feasibility of the
alternative(s) and technical
opportunities or limitations identified
in the evaluation of reasonable alternate
sites. The Commission is preparing a
draft policy to outline how alternative
analyses should be conducted and
evaluated, and will release it for public
comment prior to consideration for
Commission adoption. In addition, on
final rulemaking, the Commission will
adjust the language of § 806.14(b)(1)(v)
to make clear that the analysis is needed
only for new projects and for major
modifications that seek to increase the
surface water withdrawal.
Comment: The Commission should
reconcile the application requirements
in § 806.14 to recognize that the
potential for waiver of the aquifer
testing requirements in § 806.12.
Response: The Commission agrees
and has revised § 806.14(b)(2)(i) and
(d)(2)(i).
Comment: The Commission should
clarify whether renewals that involve a
major modification should be handled
under the new application and major
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modification standards in § 806.14(a)
and (b) or in the renewal standards in
§ 806.14(c) and (d).
Response: The Commission agrees
that the rule should be clarified and
proposes changes to § 806.14(c) and
806.14(d)(2), (4) and (6) to establish that
renewal applications, with either minor
or major modifications, are subject to
§ 806.14(c) and (d).
Comment: The Commission should
accept other types of certified mail proof
of delivery beyond the US Postal
Service under § 806.15(g).
Response: The Commission agrees
and § 806.15(g) is revised to include the
verified return delivery receipt from a
comparable delivery service to the U.S.
Postal Service.
Comment: The Commission should
revise § 806.15(b)(3) to clarify which
property is subject to the notice
requirements and should read ‘‘where
the property of such property owner is
served by a public water supply.’’
Response: The Commission agrees
and the final rulemaking is revised
accordingly.
Comment: The Commission should
exempt AMD passive treatment systems
from the requirements for mining and
construction dewatering under
§§ 806.14(b)(6) and (d)(6) and
806.23(b)(5).
Response: The Commission has not
extended its review jurisdiction over
passive AMD treatment facilities and
nothing in the proposed rule was meant
to alter that long standing
determination. Accordingly, the final
rule contains revisions to §§ 806.14(b)(6)
and (d)(6) and 806.23(b)(5) to remove
the word ‘‘gravity-drained’’ and clarify
its application to ‘‘AMD facilities that
qualify as a withdrawal.’’
Miscellaneous Changes
Comment: Including in § 808.2(a) that
the 30 day appeal period can run from
publication on the Commission’s Web
site creates issues, including knowing
whether the appeal period runs from
publication on the Web site or the
Federal Register and the fact that it is
not always clear when something is
posted to a Web site or is easily found
on the Web site.
Response: The final rule revises
§ 808.2(a) to remove this language. The
30-day appeal period for third party
appeals will run from the date of
publication in the Federal Register.
Comment: The addition of ‘‘or other
fluids associated with the development
of natural gas resources’’ to the
definition of ‘‘production fluids’’ under
§ 806.3 is inaccurate and over-inclusive.
The revised definition of production
fluids would cause confusion with the
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29389
member jurisdiction terminology. The
commenter is supportive of the stated
goal of this change and proposed
additional language to be added in other
parts of regulations.
Response: The final rule removes the
change to the definition of ‘‘production
fluid.’’ The revision proposed by the
commenter will be evaluated for
inclusion in a future rulemaking.
Comment: The addition of
‘‘consumptive use’’ to the definition of
‘‘facility’’ in § 806.3 is unwarranted as
the definition of ‘‘facility’’ matches the
definition in the Compact.
Response: The final rule will remove
the amendment to the definition of
‘‘facility’’. However, the definition of
facility includes plants, structures,
machinery and equipment acquired,
constructed, operated or maintained for
the beneficial use of water resources
that includes the consumptive use of
water.
The Commission also is making
additional housekeeping changes on the
final rulemaking:
(1) § 806.6(b)(6) (related to transfers of
approvals) was added to recognize
registered grandfathered aspects of a
project under subpart E.
(2) The phrase ‘‘hydro report’’ in
§ 806.14(d)(2)(ii) was clarified to
‘‘hydrogeologic report’’.
(3) The word ‘‘Commission’s’’ is
removed from § 806.41(c).
Transition Issues
As noted in the DATES section, this
rule will take effect on July 1, 2017,
with the exception of the adoption of
subpart E (related to registration of
grandfathered projects) and the
corresponding changes to
§ 806.4(a)(1)(iii) and (a)(2)(iv), which
take effect on January 1, 2018.
Coincident with the authorization to
adopt this final rulemaking, the
Commission also adopted a Regulatory
Program Fee Schedule that sets forth the
fee for registration for grandfathered
projects. This fee schedule is available
on the Commission’s Web site at
www.srbc.net/policies/policies.htm.
List of Subjects in 18 CFR Parts 806 and
808
Administrative practice and
procedure, Water resources.
Accordingly, for the reasons set forth
in the preamble, the Susquehanna River
Basin Commission amends 18 CFR parts
806 and 808 as follows:
PART 806—REVIEW AND APPROVAL
OF PROJECTS
1. The authority citation for part 806
continues to read as follows:
■
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Authority: Secs. 3.4, 3.5(5), 3.8, 3.10 and
15.2, Pub. L. 91–575, 84 Stat. 1509, et seq.
2. Amend § 806.1 by revising
paragraphs (a) and (f) to read as follows:
■
§ 806.1806.1
Scope.
(a) This part establishes the scope and
procedures for review and approval of
projects under section 3.10 of the
Susquehanna River Basin Compact, Pub.
L. 91–575, 84 Stat. 1509, et seq., (the
compact) and establishes special
standards under section 3.4(2) of the
compact governing water withdrawals,
the consumptive use of water, and
diversions. The special standards
established pursuant to section 3.4(2)
shall be applicable to all water
withdrawals and consumptive uses in
accordance with the terms of those
standards, irrespective of whether such
withdrawals and uses are also subject to
project review under section 3.10. This
part, and every other part of 18 CFR
chapter VIII, shall also be incorporated
into and made a part of the
comprehensive plan.
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(f) Any Commission forms or
documents referenced in this part may
be obtained from the Commission at
4423 North Front Street, Harrisburg, PA
17110, or from the Commission’s Web
site at www.srbc.net.
■ 3. In § 806.3, add, in alphabetical
order, a definition for ‘‘Wetlands’’ to
read as follows:
§ 806.3806.3
Definitions.
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Wetlands. Those areas that are
inundated or saturated by surface or
groundwater at a frequency and
duration sufficient to support, and that
under normal circumstances do support,
a prevalence of vegetation typically
adapted for life in saturated soil
conditions. Wetlands generally include
swamps, marshes, bogs, and similar
areas.
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■ 4. Amend § 806.4 by revising
paragraphs (a) introductory text,
(a)(1)(iii), (a)(2) introductory text, and
(a)(2)(iv) and adding paragraph
(a)(3)(vii) to read as follows:
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§ 806.4806.4
approval.
Projects requiring review and
(a) Except for activities relating to site
evaluation, to aquifer testing under
§ 806.12 or to those activities authorized
under § 806.34, no person shall
undertake any of the following projects
without prior review and approval by
the Commission. The project sponsor
shall submit an application in
accordance with subpart B of this part
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and shall be subject to the applicable
standards in subpart C of this part.
(1) * * *
(iii) With respect to projects that
existed prior to January 23, 1971, any
project:
(A) Registered in accordance with
subpart E of this part that increases its
consumptive use by any amount over
the quantity determined under § 806.44;
(B) Increasing its consumptive use to
an average of 20,000 gpd or more in any
consecutive 30-day period; or
(C) That fails to register its
consumptive use in accordance with
subpart E of this part.
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(2) Withdrawals. Any project,
including all of its sources, described
below shall require an application to be
submitted in accordance with § 806.13,
and shall be subject to the standards set
forth in §§ 806.21 and 806.23.
Hydroelectric projects, except to the
extent that such projects involve a
withdrawal, shall be exempt from the
requirements of this section regarding
withdrawals; provided, however, that
nothing in this paragraph (a)(2) shall be
construed as exempting hydroelectric
projects from review and approval
under any other category of project
requiring review and approval as set
forth in this section, § 806.5, or part 801
of this chapter. 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.
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(iv) With respect to groundwater
projects that existed prior to July 13,
1978, surface water projects that existed
prior to November 11, 1995, or projects
that existed prior to January 1, 2007,
with multiple sources involving a
withdrawal of a consecutive 30-day
average of 100,000 gpd or more that did
not require Commission review and
approval, any project:
(A) Registered in accordance with
subpart E of this part that increases its
withdrawal by any amount over the
quantity determined under § 806.44;
(B) Increasing its withdrawal
individually or cumulatively from all
sources to an average of 100,000 gpd or
more in any consecutive 30-day period;
or
(C) That fails to register its
withdrawals in accordance with subpart
E of this part.
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(3) * * *
(vii) The diversion of any flowback or
production fluids from hydrocarbon
development projects located outside
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the basin to an in-basin treatment or
disposal facility authorized under
separate government approval to accept
flowback or production fluids, shall not
be subject to separate review and
approval as a diversion under this
paragraph (c)(3), provided the fluids are
handled, transported and stored in
compliance with all standards and
requirements of the applicable member
jurisdiction.
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■ 5. Amend § 806.6 by adding paragraph
(b)(6) to read as follows:
§ 806.6806.6
Transfer of approvals.
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(b) * * *
(6) The project is registered under
subpart E of this part.
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■ 6. Amend § 806.11 by revising
paragraph (b) to read as follows:
§ 806.11
Preliminary consultations.
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(b) Except for project sponsors of
electric power generation projects under
§ 801.12(c)(2) of this chapter,
preliminary consultation is optional for
the project sponsor (except with respect
to aquifer test plans under § 806.12) but
shall not relieve the sponsor from
complying with the requirements of the
compact or with this part.
■ 7. Amend § 806.12 by revising
paragraph (a) and adding paragraph (f)
to read as follows:
§ 806.12
Constant-rate aquifer testing.
(a) Prior to submission of an
application pursuant to § 806.13, a
project sponsor seeking approval for a
new groundwater withdrawal, a renewal
of an expiring groundwater withdrawal,
or an increase of a groundwater
withdrawal shall perform a constantrate aquifer test in accordance with this
section.
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(f) Review of submittals under this
section may be terminated by the
Commission in accordance with the
procedures set forth in § 806.16.
■ 8. Revise § 806.14 to read as follows:
§ 806.14
Contents of application.
(a) Applications for a new project or
a major modification to an existing
approved project shall include, but not
be limited to, the following information
and, where applicable, shall be subject
to the requirements in paragraph (b) of
this section and submitted on forms and
in the manner prescribed by the
Commission.
(1) Identification of project sponsor
including any and all proprietors,
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corporate officers or partners, the
mailing address of the same, and the
name of the individual authorized to act
for the sponsor.
(2) Project location, including latitude
and longitude coordinates in decimal
degrees accurate to within 10 meters,
the project location displayed on a map
with a 7.5-minute USGS topographic
base, and evidence of legal access to the
property upon which the project is
proposed.
(3) Project description, including:
Purpose, proposed quantity to be
withdrawn or consumed, if applicable,
and identification of all water sources
related to the project including location
and date of initiation of each source.
(4) Anticipated impact of the project,
including impacts on existing water
withdrawals, nearby surface waters, and
threatened or endangered species and
their habitats.
(5) The reasonably foreseeable need
for the proposed quantity of water to be
withdrawn or consumed, including
supporting calculations, and the
projected demand for the term of the
approval.
(6) A metering plan that adheres to
§ 806.30.
(7) Evidence of coordination and
compliance with member jurisdictions
regarding all necessary permits or
approvals required for the project from
other federal, state or local government
agencies having jurisdiction over the
project.
(8) Project estimated completion date
and estimated construction schedule.
(9) Draft notices required by § 806.15.
(10) The Commission may also
require the following information as
deemed necessary:
(i) Engineering feasibility.
(ii) Ability of the project sponsor to
fund the project.
(b) Additional information is required
for a new project or a major
modification to an existing approved
project as follows.
(1) Surface water. (i) Water use and
availability.
(ii) Project setting, including surface
water characteristics, identification of
wetlands, and site development
considerations.
(iii) Description and design of intake
structure.
(iv) Anticipated impact of the
proposed project on local flood risk,
recreational uses, fish and wildlife, and
natural environment features.
(v) For new projects and major
modifications to increase a withdrawal,
alternatives analysis for a withdrawal
proposed in settings with a drainage
area of 50 miles square or less, or in a
waterway with exceptional water
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quality, or as required by the
Commission.
(2) Groundwater—(i) With the
exception of mining related withdrawals
solely for the purpose of dewatering;
construction dewatering withdrawals
and withdrawals for the sole purpose of
groundwater or below water table
remediation generally which are
addressed in paragraph (b)(6) of this
section, the project sponsor shall
provide an interpretative report that
includes all monitoring and results of a
constant-rate aquifer test consistent with
§ 806.12 and an updated groundwater
availability estimate if changed from the
aquifer test plan, unless a request for a
waiver of the requirements of § 806.12 is
granted. The project sponsor shall
obtain Commission approval of the test
procedures prior to initiation of the
constant-rate aquifer test.
(ii) Water use and availability.
(iii) Project setting, including nearby
surface water features.
(iv) Groundwater elevation
monitoring plan for all production
wells.
(v) Alternatives analysis as required
by the Commission.
(3) Consumptive use. (i) Consumptive
use calculations, and a mitigation plan
consistent with § 806.22(b).
(ii) Water conservation methods,
design or technology proposed or
considered.
(iii) Alternatives analysis as required
by the Commission.
(4) Into basin diversions. (i) Provide
the necessary information to
demonstrate that the proposed project
will meet the standards in § 806.24(c).
(ii) Identification of the source and
water quality characteristics of the water
to be diverted.
(5) Out of basin diversions. (i) Provide
the necessary information to
demonstrate that the proposed project
will meet the standards in § 806.24(b).
(ii) Project setting.
(6) Other projects. Other projects,
including without limitation, mine
dewatering, construction dewatering,
water resources remediation projects,
and AMD remediation facilities that
qualify as a withdrawal.
(i) In lieu of aquifer testing, report(s)
prepared for any other purpose or as
required by other governmental
regulatory agencies that provides a
demonstration of the hydrogeologic
and/or hydrologic effects and limits of
said effects due to operation of the
proposed project and effects on local
water availability.
(ii) [Reserved]
(c) All applications for renewal of
expiring approved projects, including
those with minor or major
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modifications, shall include, but not be
limited to, the following information,
and, where applicable, shall be subject
to the requirements in paragraph (d) of
this section and submitted on forms and
in the manner prescribed by the
Commission.
(1) Identification of project sponsor
including any and all proprietors,
corporate officers or partners, the
mailing address of the same, and the
name of the individual authorized to act
for the sponsor.
(2) Project location, including latitude
and longitude coordinates in decimal
degrees accurate to within 10 meters,
the project location displayed on map
with a 7.5-minute USGS topographic
base, and evidence of legal access to the
property upon which the project is
located.
(3) Project description, to include, but
not be limited to: Purpose, proposed
quantity to be withdrawn or consumed
if applicable, identification of all water
sources related to the project including
location and date of initiation of each
source, and any proposed project
modifications.
(4) The reasonably foreseeable need
for the requested renewal of the quantity
of water to be withdrawn or consumed,
including supporting calculations, and
the projected demand for the term of the
approval.
(5) An as-built and approved metering
plan.
(6) Copies of permits from member
jurisdictions regarding all necessary
permits or approvals obtained for the
project from other federal, state, or local
government agencies having jurisdiction
over the project.
(7) Copy of any approved mitigation
or monitoring plan and any related asbuilt for the expiring project.
(8) Demonstration of registration of all
withdrawals or consumptive uses in
accordance with the applicable state
requirements.
(9) Draft notices required by § 806.15.
(d) Additional information is required
for the following applications for
renewal of expiring approved projects.
(1) Surface water. (i) Historic water
use quantities and timing of use.
(ii) Changes to stream flow or quality
during the term of the expiring
approval.
(iii) Changes to the facility design.
(iv) Any proposed changes to the
previously authorized purpose.
(2) Groundwater—(i) The project
sponsor shall provide an interpretative
report that includes all monitoring and
results of any constant-rate aquifer
testing previously completed or
submitted to support the original
approval. In lieu of a testing report,
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historic operational data pumping and
elevation data may be considered, as a
request for waiver of the requirements of
§ 806.12. Those projects that did not
have constant-rate aquifer testing
completed for the original approval that
was consistent with § 806.12 or
sufficient historic operational pumping
and groundwater elevation data may be
required to complete constant-rate
aquifer testing consistent with § 806.12,
prepare and submit an interpretative
report that includes all monitoring and
results of any constant-rate aquifer test.
(ii) An interpretative report providing
analysis and comparison of current and
historic water withdrawal and
groundwater elevation data with
previously completed hydrogeologic
report.
(iii) Current groundwater availability
analysis assessing the availability of
water during a 1-in-10 year recurrence
interval under the existing conditions
within the recharge area and predicted
for term of renewal (i.e., other users,
discharges, and land development
within the groundwater recharge area).
(iv) Groundwater elevation
monitoring plan for all production
wells.
(v) Changes to the facility design.
(vi) Any proposed changes to the
previously authorized purpose.
(3) Consumptive use. (i) Consumptive
use calculations, and a copy of the
approved plan or method for mitigation
consistent with § 806.22.
(ii) Changes to the facility design.
(iii) Any proposed changes to the
previously authorized purpose.
(4) Into basin diversion. (i) Provide
the necessary information to
demonstrate that the proposed project
will meet the standards in § 806.24(c).
(ii) Identification of the source and
water quality characteristics of the water
to be diverted.
(iii) Changes to the facility design.
(iv) Any proposed changes to the
previously authorized purpose.
(5) Out of basin diversion. (i) Historic
water use quantities and timing of use.
(ii) Changes to stream flow or quality
during the term of the expiring
approval.
(iii) Changes to the facility design.
(iv) Any proposed changes to the
previously authorized purpose,
(6) Other projects. Other projects,
including without limitation, mine
dewatering, water resources remediation
projects, and AMD facilities that qualify
as a withdrawal.
(i) Copy of approved report(s)
prepared for any other purpose or as
required by other governmental
regulatory agencies that provides a
demonstration of the hydrogeologic
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and/or hydrologic effects and limits of
said effects due to operation of the
project and effects on local water
availability.
(ii) Any data or reports that
demonstrate effects of the project are
consistent with those reports provided
in paragraph (d)(6)(i) of this section.
(iii) Demonstration of continued need
for expiring approved water source and
quantity.
(iv) Changes to the facility design.
(v) Any proposed changes to the
previously authorized purpose.
(e) A report about the project prepared
for any other purpose, or an application
for approval prepared for submission to
a member jurisdiction, may be accepted
by the Commission provided the said
report or application addresses all
necessary items on the Commission’s
form or listed in this section, as
appropriate.
(f) Applications for minor
modifications must be complete and
will be on a form and in a manner
prescribed by the Commission.
Applications for minor modifications
must contain the following:
(1) Description of the project;
(2) Description of all sources,
consumptive uses and diversions
related to the project;
(3) Description of the requested
modification;
(4) Statement of the need for the
requested modification; and
(5) Demonstration that the anticipated
impact of the requested modification
will not adversely impact the water
resources of the basin.
(g) For any applications, the Executive
Director or Commission may require
other information not otherwise listed
in this section.
■ 9. Amend § 806.15 by revising
paragraph (a), adding paragraph (b)(3),
and revising paragraph (g) to read as
follows:
§ 806.15
Notice of application.
(a) Except with respect to paragraphs
(h) and (i) of this section, any project
sponsor submitting an application to the
Commission shall provide notice thereof
to the appropriate agency of the member
State, each municipality in which the
project is located, and the county and
the appropriate county agencies in
which the project is located. The project
sponsor shall also publish notice of
submission of the application at least
once in a newspaper of general
circulation serving the area in which the
project is located. The project sponsor
shall also meet any of the notice
requirements set forth in paragraphs (b)
through (f) of this section, if applicable.
All notices required under this section
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shall be provided or published no later
than 20 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 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) * * *
(3) For groundwater withdrawal
applications, the Commission or
Executive Director may allow
notification of property owners through
alternate methods where the property of
such property owner is served by a
public water supply.
*
*
*
*
*
(g) The project sponsor shall provide
the Commission with a copy of the
United States Postal Service return
receipt or the verified return receipt
from a comparable delivery service for
the notifications to agencies of member
States, municipalities and appropriate
county 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 publication and
records of notices sent under this
section for the duration of the approval
related to such notices.
*
*
*
*
*
■ 10. Amend § 806.21 by revising
paragraphs (a) and (c)(1) to read as
follows:
§ 806.21
General standards.
(a) A project shall be feasible and not
be detrimental to the proper
conservation, development,
management, or control of the water
resources of the basin.
*
*
*
*
*
(c) * * *
(1) The Commission may suspend the
review of any application under this
part if the project is subject to the lawful
jurisdiction of any member jurisdiction
or any political subdivision thereof, and
such member jurisdiction or political
subdivision has disapproved or denied
the project. Where such disapproval or
denial is reversed on appeal, the appeal
is final, and the project sponsor
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provides the Commission with a
certified copy of the decision, the
Commission shall resume its review of
the application. Where, however, an
application has been suspended
hereunder for a period greater than three
years, the Commission may terminate its
review. Thereupon, the Commission
shall notify the project sponsor of such
termination and that the application fee
paid by the project sponsor is forfeited.
The project sponsor may reactivate the
terminated application by reapplying to
the Commission, providing evidence of
its receipt of all necessary governmental
approvals and, at the discretion of the
Commission, submitting new or
updated information.
*
*
*
*
*
■ 11. Amend § 806.22 by revising
paragraphs (b) introductory text, (b)(3),
(e), and (f)(3) and (9) to read as follows:
§ 806.22
water.
Standards for consumptive use of
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*
*
*
*
(b) Mitigation. All project sponsors
whose consumptive use of water is
subject to review and approval under
§ 806.4, § 806.5, § 806.6, or § 806.17
shall mitigate such consumptive use.
Except to the extent that the project
involves the diversion of the waters out
of the basin, public water supplies shall
be exempt from the requirements of this
section regarding consumptive use;
provided, however, that nothing in this
section shall be construed to exempt
individual consumptive users
connected to any such public water
supply from the requirements of this
section. Mitigation may be provided by
one or a combination of the following:
*
*
*
*
*
(3) Provide monetary payment to the
Commission, for all water
consumptively used over the course of
a year, in an amount and manner
prescribed by the Commission.
*
*
*
*
*
(e) Approval by rule for consumptive
uses. (1) General rule. Except with
respect to projects involving
hydrocarbon development subject to the
provisions of paragraph (f) of this
section, any project who is solely
supplied water for consumptive use by
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.
(2) Notification of intent. Prior to
undertaking a project or increasing a
previously approved quantity of
consumptive use, the project sponsor
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shall submit a notice of intent (NOI) on
forms prescribed by the Commission,
and the appropriate application fee,
along with any required attachments.
(3) Time of notice. Within 20 days
after submittal of an NOI under
paragraph (e)(2) of this section, the
project sponsor shall satisfy the notice
requirements set forth in § 806.15.
(4) Metering, daily use monitoring,
and quarterly reporting. The project
sponsor shall comply with metering,
daily use monitoring, and quarterly
reporting as specified in § 806.30.
(5) Standard conditions. The standard
conditions set forth in § 806.21 shall
apply to projects approved by rule.
(6) Mitigation. The project sponsor
shall comply with mitigation in
accordance with paragraph (b)(2) or (3)
of this section.
(7) Compliance with other laws. The
project sponsor shall obtain all
necessary permits or approvals required
for the project from other federal, state
or local government agencies having
jurisdiction over the project. The
Commission reserves the right to
modify, suspend or revoke any approval
under this paragraph (e) if the project
sponsor fails to obtain or maintain such
approvals.
(8) Decision. The Executive Director
may grant, deny, suspend, revoke,
modify or condition an approval to
operate under this approval by rule, or
renew an existing approval by rule
previously granted hereunder, and will
notify the project sponsor of such
determination, including the quantity of
consumptive use approved.
(9) Term. Approval by rule shall be
effective upon written notification from
the Executive Director to the project
sponsor, shall expire 15 years from the
date of such notification, and shall be
deemed to rescind any previous
consumptive use approvals.
(f) * * *
(3) Within 20 days after submittal of
an NOI under paragraph (f)(2) of this
section, the project sponsor shall satisfy
the notice requirements set forth in
§ 806.15.
*
*
*
*
*
(9) The Executive Director may grant,
deny, suspend, revoke, modify or
condition an approval to operate under
this approval by rule, or renew an
existing approval by rule granted
hereunder, 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
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water withdrawals or diversions subject
to review pursuant to § 806.4(a). Any
sources of water approved pursuant to
this section shall be further subject to
any approval or authorization required
by the member jurisdiction.
*
*
*
*
*
■ 12. Amend § 806.23 by revising
paragraphs (b)(2) and (b)(3)(i) and
adding paragraph (b)(5) to read as
follows:
§ 806.23
Standards for water withdrawals.
*
*
*
*
*
(b) * * *
(2) The Commission may deny an
application, limit or condition an
approval to ensure that the withdrawal
will not cause significant adverse
impacts to the water resources of the
basin. The Commission may consider,
without limitation, the following in its
consideration of adverse impacts:
Lowering of groundwater or stream flow
levels; groundwater and surface water
availability, including cumulative uses;
rendering competing supplies
unreliable; affecting other water uses;
causing water quality degradation that
may be injurious to any existing or
potential water use; affecting fish,
wildlife or other living resources or
their habitat; causing permanent loss of
aquifer storage capacity; affecting
wetlands; or affecting low flow of
perennial or intermittent streams.
(3) * * *
(i) Limit the quantity, timing or rate
of withdrawal or level of drawdown,
including requiring a total system limit.
*
*
*
*
*
(5) For projects consisting of mine
dewatering, water resources
remediation, and AMD facilities that
qualify as a withdrawal, review of
adverse impacts will have limited
consideration of groundwater
availability, causing permanent loss of
aquifer storage and lowering of
groundwater levels provided these
projects are operated in accordance with
the laws and regulations of the member
jurisdictions.
■ 13. Amend § 806.30 by revising the
introductory text and paragraph (a)(4)
and adding paragraph (a)(8) to read as
follows:
§ 806.30
Monitoring.
The Commission, as part of the
project review, shall evaluate the
proposed methodology for monitoring
consumptive uses, water withdrawals
and mitigating flows, including flow
metering devices, stream gages, and
other facilities used to measure the
withdrawals or consumptive use of the
project or the rate of stream flow. If the
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Commission determines that additional
flow measuring, metering or monitoring
devices are required, these shall be
provided at the expense of the project
sponsor, installed in accordance with a
schedule set by the Commission, and
installed per the specifications and
recommendations of the manufacturer
of the device, and shall be subject to
inspection by the Commission at any
time.
(a) * * *
(4) Measure groundwater levels in all
approved production and other wells, as
specified by the Commission.
*
*
*
*
*
(8) Perform other monitoring for
impacts to water quantity, water quality
and aquatic biological communities, as
specified by the Commission.
*
*
*
*
*
■ 14. Amend § 806.31 by revising
paragraphs (d) and (e) to read as follows:
§ 806.31
Term of approvals.
*
*
*
*
*
(d) If the Commission determines that
a project has been abandoned, by
evidence of nonuse for a period of time
and under such circumstances that an
abandonment may be inferred, the
Commission may revoke the approval
for such withdrawal, diversion or
consumptive use.
(e) If a project sponsor submits an
application to the Commission no later
than six months prior to the expiration
of its existing Commission docket
approval or no later than one month
prior to the expiration of its existing
ABR or NOI approval, the existing
approval will be deemed extended until
such time as the Commission renders a
decision on the application, unless the
existing approval or a notification in
writing from the Commission provides
otherwise.
■ 15. Add subpart E to read as follows:
Subpart E—Registration of Grandfathered
Projects
Sec.
806.40 Applicability.
806.41 Registration and eligibility.
806.42 Registration requirements.
806.43 Metering and monitoring
requirements.
806.44 Determination of grandfathered
quantities.
806.45 Appeal of determination.
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§ 806.40
Applicability.
(a) This subpart is applicable to the
following projects, which shall be
known as grandfathered projects:
(1) The project has an associated
average consumptive use of 20,000 gpd
or more in any consecutive 30-day
period all or part of which is a precompact consumptive use that has not
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been approved by the Commission
pursuant to § 806.4.
(2) The project has an associated
groundwater withdrawal average of
100,000 gpd or more in any consecutive
30-day period all or part of which was
initiated prior to July 13, 1978, that has
not been approved by the Commission
pursuant to § 806.4.
(3) The project has an associated
surface water withdrawal average of
100,000 gpd or more in any consecutive
30-day period all or part of which was
initiated prior to November 11, 1995,
that has not been approved by the
Commission pursuant to § 806.4.
(4) The project (or an element of the
project) has been approved by the
Commission but has an associated
consumptive use or water withdrawal
that has not been approved by the
Commission pursuant to § 806.4.
(5) Any project not included in
paragraphs (a)(2) through (4) of this
section that has a total withdrawal
average of 100,000 gpd or more in any
consecutive 30-day average from any
combination of sources which was
initiated prior to January 1, 2007, that
has not been approved by the
Commission pursuant to § 806.4.
(6) Any source associated with a
project included in paragraphs (a)(2)
through (5) of this section regardless of
quantity.
(b) A project, including any source of
the project, that can be determined to
have been required to seek Commission
review and approval under the pertinent
regulations in place at the time is not
eligible for registration as a
grandfathered project.
§ 806.41
Registration and eligibility.
(a) Project sponsors of grandfathered
projects identified in § 806.40 shall
submit a registration to the Commission,
on a form and in a manner prescribed
by the Commission, by December 31,
2019.
(b) Any grandfathered project that
fails to register under paragraph (a) of
this section shall be subject to review
and approval under § 806.4.
(c) Any project that is not eligible to
register under paragraph (a) of this
section shall be subject to review and
approval under § 806.4.
(d) The Commission may establish
fees for obtaining and maintaining
registration in accordance with § 806.35.
(e) A registration under this subpart
may be transferred pursuant to § 806.6.
§ 806.42
Registration requirements.
(a) Registrations shall include the
following information:
(1) Identification of project sponsor
including any and all proprietors,
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corporate officers or partners, the
mailing address of the same, and the
name of the individual authorized to act
for the sponsor.
(2) Description of the project and site
in terms of:
(i) Project location, including latitude
and longitude coordinates in decimal
degrees accurate to within 10 meters.
(ii) Project purpose.
(3) Identification of all sources of
water, including the date the source was
put into service, each source location
(including latitude and longitude
coordinates in decimal degrees accurate
to within 10 meters), and if applicable,
any approved docket numbers.
(4) Identification of current metering
and monitoring methods for water
withdrawal and consumptive use.
(5) Identification of current
groundwater level or elevation
monitoring methods at groundwater
sources.
(6) All quantity data for water
withdrawals and consumptive use for a
minimum of the previous five calendar
years. If the project sponsor registering
submitted the water withdrawal and
consumptive use data for the previous
five calendar years to a member
jurisdiction, that data will satisfy this
requirement. A project sponsor
registering may provide supplementary
data related to water withdrawals and
consumptive use quantities. If quantity
data are not available, any information
available upon which a determination of
quantity could be made.
(7) For consumptive use, description
of processes that use water,
identification of water returned to the
Basin, history of the use, including
process changes, expansions and other
actions that would have an impact on
the amount of water consumptively
used during the past five calendar years.
(8) Based on the data provided, the
quantity of withdrawal for each
individual source and consumptive use
the project sponsor requests to be
grandfathered by the Commission.
(9) Any ownership or name changes
to the project since January 1, 2007.
(b) The Commission may require any
other information it deems necessary for
the registration process or waive any
information required under paragraph
(a) of this section for projects relying on
a prior determination of the
Commission.
§ 806.43 Metering and monitoring
requirements.
(a) As a part of the registration
process, the Commission shall review
the current metering and monitoring for
grandfathered withdrawals and
consumptive uses.
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(b) The Commission may require a
metering and monitoring plan for the
project sponsor to follow.
(c) Project sponsors, as an ongoing
obligation of their registration, shall
report to the Commission all
information specified in the
grandfathering determination under
§ 806.44 in a form and manner
determined by the Commission. If water
withdrawal and consumptive use
quantity reporting is required by the
member jurisdiction where the project is
located, the Commission shall accept
that reported quantity to satisfy the
requirements of this paragraph (c),
unless the Commission finds that
additional data is needed that is not
required by the member jurisdiction.
(d) Any data generated or collected
under paragraph (c) of this section will
be made available to the member
jurisdictions in a manner and timeframe
mutually agreeable to both the
Commission and the jurisdiction.
§ 806.44 Determination of grandfathered
quantities.
(a) For each registration submitted,
the Executive Director shall determine
the grandfathered quantity for each
withdrawal source and consumptive
use.
(b) In making a determination, the
following factors should be considered:
(1) The withdrawal and use data and
the peak consecutive 30-day average
shown by the data;
(2) The reliability and accuracy of the
data and/or the meters or measuring
devices;
(3) Determination of reasonable and
genuine usage of the project, including
any anomalies in the usage;
(4) Whether the grandfathered amount
includes an operational margin of
safety; and
(5) Other relevant factors.
(c) The Executive Director, in lieu of
a determination under paragraph (b) of
this section, may accept a previous
grandfathering determination by the
Commission at the request of the project
sponsor.
nlaroche on DSK30NT082PROD with RULES
§ 806.45
Appeal of determination.
(a) A final determination of the
grandfathered quantity by the Executive
Director must be appealed to the
Commission within 30 days from actual
notice of the determination.
(b) The Commission shall appoint a
hearing officer to preside over appeals
under this section. Hearings shall be
governed by the procedures set forth in
part 808 of this chapter.
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PART 808—HEARINGS AND
ENFORCEMENT ACTIONS
16. 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.
■
17. Revise § 808.1 to read as follows:
§ 808.1808.1
Public hearings.
(a) Required hearings. A public
hearing shall be conducted in the
following instances:
(1) Addition of projects or adoption of
amendments to the comprehensive plan,
except as otherwise provided by section
14.1 of the compact.
(2) Review and approval of
diversions.
(3) Imposition or modification of rates
and charges.
(4) Determination of protected areas.
(5) Drought emergency declarations.
(6) Hearing requested by a member
jurisdiction.
(7) As otherwise required by sections
3.5(4), 4.4, 5.2(e), 6.2(a), 8.4, and 10.4 of
the compact.
(b) Optional hearings. A public
hearing may be conducted by the
Commission or the Executive Director in
any form or style chosen by the
Commission or Executive Director in the
following instances:
(1) Proposed rulemaking.
(2) Consideration of projects, except
projects approved pursuant to
memoranda of understanding with
member jurisdictions.
(3) Adoption of policies and technical
guidance documents.
(4) When it is determined that a
hearing is necessary to give adequate
consideration to issues related to public
health, safety and welfare, or protection
of the environment, or to gather
additional information for the record or
consider new information on a matter
before the Commission.
(c) Notice of public hearing. At least
20 days before any public hearing
required by the compact, notices stating
the date, time, place and purpose of the
hearing including issues of interest to
the Commission shall be published at
least once in a newspaper of general
circulation in the area affected. In all
other cases, at least 20 days prior to the
hearing, notice shall be posted on the
Commission Web site, sent to the parties
who, to the Commission’s knowledge,
will participate in the hearing, and sent
to persons, organizations and news
media who have made requests to the
Commission for notices of hearings or of
a particular hearing. With regard to
rulemaking, hearing notices need only
be forwarded to the directors of the New
York Register, the Pennsylvania
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Bulletin, the Maryland Register and the
Federal Register, and it is sufficient that
this notice appear in the Federal
Register at least 20 days prior to the
hearing and in each individual state
publication at least 10 days prior to any
hearing scheduled in that state.
(d) Standard public hearing
procedure. (1) Hearings shall be open to
the public. Participants may be any
person, including a project sponsor,
wishing to appear at the hearing and
make an oral or written statement.
Statements shall be made a part of the
record of the hearing, and written
statements may be received up to and
including the last day on which the
hearing is held, or within 10 days or a
reasonable time thereafter as may be
specified by the presiding officer.
(2) Participants are encouraged to file
with the Commission at its headquarters
written notice of their intention to
appear at the hearing. The notice should
be filed at least three days prior to the
opening of the hearing.
(e) Representative capacity.
Participants wishing to be heard at a
public hearing may appear in person or
be represented by an attorney or other
representative. A governmental
authority may be represented by one of
its officers, employees or by a designee
of the governmental authority.
(f) Description of project. When notice
of a public hearing is issued, there shall
be available for inspection, consistent
with the Commission’s Access to
Records Policy, all plans, summaries,
maps, statements, orders or other
supporting documents which explain,
detail, amplify, or otherwise describe
the project the Commission is
considering. Instructions on where and
how the documents may be obtained
will be included in the notice.
(g) Presiding officer. A public hearing
shall be presided over by the
Commission chair, the Executive
Director, or any member or designee of
the Commission or Executive Director.
The presiding officer shall have full
authority to control the conduct of the
hearing and make a record of the same.
(h) Transcript. Whenever a project
involving a diversion of water is the
subject of a public hearing, and at all
other times deemed necessary by the
Commission or the Executive Director, a
written transcript of the hearing shall be
made. A certified copy of the transcript
and exhibits shall be available for
review during business hours at the
Commission’s headquarters to anyone
wishing to examine them. Persons
wishing to obtain a copy of the
transcript of any hearing shall make
arrangements to obtain it directly from
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the recording stenographer at their
expense.
(i) Joint hearings. The Commission
may conduct any public hearings in
concert with any other agency of a
member jurisdiction.
■ 18. Revise § 808.2 to read as follows:
nlaroche on DSK30NT082PROD with RULES
§ 808.2808.2
Administrative appeals.
(a) A project sponsor or other person
aggrieved by a final action or decision
of the Executive Director shall file a
written appeal with the Commission
within 30 days of the receipt of actual
notice by the project sponsor or within
30 days of publication of the action in
the Federal Register. 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. The
following is a non-exclusive list of
actions by the Executive Director that
are subject to an appeal to the
Commission:
(1) A determination that a project
requires review and approval under
§ 806.5;
(2) An approval or denial of an
application for transfer under § 806.6;
(3) An approval of a Notice of Intent
under a general permit under § 806.17;
(4) An approval of a minor
modification under § 806.18;
(5) A determination regarding an
approval by rule under § 806.22(e) or (f);
(6) A determination regarding an
emergency certificate under § 806.34;
(7) Enforcement orders issued under
§ 808.14;
(8) A finding regarding a civil penalty
under § 808.15(c);
(9) A determination of grandfathered
quantity under § 806.44;
(10) A decision to modify, suspend or
revoke a previously granted approval;
and
(11) A records access determination
made pursuant to Commission policy.
(b) The appeal shall identify the
specific action or decision being
appealed, 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.
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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) The Commission will determine
the manner in which it will hear the
appeal. 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, 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, 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. If a hearing
is granted, the Commission shall refer
the matter for hearing to be held in
accordance with § 808.3, and appoint a
hearing officer.
(g) If a hearing is not granted, the
Commission may set a briefing schedule
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and decide the appeal based on the
record before it. The Commission may,
in its discretion, schedule and hear oral
argument on an appeal.
(h)(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 crossexamine witnesses.
(i) Where a request for an appeal is
made, the 90-day appeal period set forth
in section 3.10 (6) and Federal
reservation (o) of the compact shall not
commence until the Commission has
either denied the request for or taken
final action on an administrative appeal.
■ 19. Revise § 808.11 to read as follows:
§ 808.11
Duty to comply.
It shall be the duty of any person to
comply with any provision of the
compact, or the Commission’s rules,
regulations, orders, approvals, docket
conditions, staff directives or any other
requirement of the Commission.
■ 20. Revise § 808.14 to read as follows:
§ 808.14
Orders.
(a) Whether or not an NOV has been
issued, the Executive Director may issue
an order directing an alleged violator to
cease and desist any action or activity
to the extent such action or activity
constitutes an alleged violation, or may
issue any other order related to the
prevention of further violations, or the
abatement or remediation of harm
caused by the action or activity.
(b) If the project sponsor fails to
comply with any term or condition of a
docket or other approval, the
commissioners or Executive Director
may issue an order suspending,
modifying or revoking approval of the
docket. The commissioners may also, in
their discretion, suspend, modify or
revoke a docket approval if the project
sponsor fails to obtain or maintain other
federal, state or local approvals.
(c) The commissioners or Executive
Director may issue such other orders as
may be necessary to enforce any
provision of the compact, the
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Commission’s rules or regulations,
orders, approvals, docket conditions, or
any other requirements of the
Commission.
(d) It shall be the duty of any person
to proceed diligently to comply with
any order issued pursuant to this
section.
(e) The Commission or Executive
Director may enter into a Consent Order
and Agreement with an alleged violator
to resolve non-compliant operations and
enforcement proceedings in conjunction
with or separately from settlement
agreements under § 808.18.
■ 21. Revise § 808.15 to read as follows:
§ 808.15
Show cause proceeding.
(a) The Executive Director may issue
an order requiring an alleged violator to
show cause why a penalty should not be
assessed in accordance with the
provisions of this chapter and section
15.17 of the compact. The order to the
alleged violator shall:
(1) Specify the nature and duration of
violation(s) that is alleged to have
occurred.
(2) Set forth the date by which the
alleged violator must provide a written
response to the order.
(3) Identify the civil penalty
recommended by Commission staff.
(b) The written response by the
project sponsor should include the
following:
(1) A statement whether the project
sponsor contests that the violations
outlined in the Order occurred;
(2) If the project sponsor contests the
violations, then a statement of the
relevant facts and/or law providing the
basis for the project sponsor’s position;
(3) Any mitigating factors or
explanation regarding the violations
outlined in the Order; and
(4) A statement explaining what the
appropriate civil penalty, if any, should
be utilizing the factors at § 808.16.
(c) Based on the information
presented and any relevant policies,
guidelines or law, the Executive
Director shall make a written finding
affirming or modifying the civil penalty
recommended by Commission staff.
■ 22. Amend § 808.16 by revising
paragraphs (a) introductory text and
(a)(7), adding paragraph (a)(8), and
revising paragraph (b) to read as follows:
nlaroche on DSK30NT082PROD with RULES
§ 808.16
Civil penalty criteria.
(a) In determining the amount of any
civil penalty or any settlement of a
violation, the Commission and
Executive Director shall consider:
*
*
*
*
*
(7) The length of time over which the
violation occurred and the amount of
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water used, diverted or withdrawn
during that time period.
(8) The punitive effect of a civil
penalty.
(b) The Commission and/or Executive
Director retains the right to waive any
penalty or reduce the amount of the
penalty recommended by the
Commission staff under § 808.15(a)(3)
should it be determined, after
consideration of the factors in paragraph
(a) of this section, that extenuating
circumstances justify such action.
■
23. Revise § 808.17 to read as follows:
§ 808.17 Enforcement of penalties,
abatement or remedial orders.
Any penalty imposed or abatement or
remedial action ordered by the
Commission or the Executive Director
shall be paid or completed within such
time period as shall be specified in the
civil penalty assessment or order. The
Executive Director and Commission
counsel are authorized to take such
additional action as may be necessary to
assure compliance with this subpart. If
a proceeding before a court becomes
necessary, the penalty amount
determined in accordance with this part
shall constitute the penalty amount
recommended by the Commission to be
fixed by the court pursuant to section
15.17 of the compact.
■
24. Revise § 808.18 to read as follows:
§ 808.18
Settlement by agreement.
(a) An alleged violator may offer to
settle an enforcement action by
agreement. The Executive Director may
enter into settlement agreements to
resolve an enforcement action. The
Commission may, by Resolution, require
certain types of enforcement actions or
settlements to be submitted to the
Commission for action or approval.
(b) In the event the violator fails to
carry out any of the terms of the
settlement agreement, the Commission
or Executive Director may reinstitute a
civil penalty action and any other
applicable enforcement action against
the alleged violator.
Dated: June 21, 2017.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2017–13324 Filed 6–28–17; 8:45 am]
BILLING CODE 7040–01–P
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29397
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2017–0531]
Safety Zone; Southern California
Annual Firework Events for the San
Diego Captain of the Port Zone.
Coast Guard, DHS.
Notice of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard will enforce
a safety zone for the San Diego, CA
POPS Fireworks Display on the waters
of San Diego Bay, CA on specific
evenings from June 30, 2017 to
September 3, 2017. This safety zone is
necessary to provide for the safety of the
participants, spectators, official vessels
of the events, and general users of the
waterway. Our regulation for the
Southern California Annual Firework
Events for the San Diego Captain of the
Port Zone identifies the regulated area
for the events. During the enforcement
period, no spectators shall anchor,
block, loiter in, or impede the transit of
official patrol vessels in the regulated
area without the approval of the Captain
of the Port, or designated representative.
DATES: The regulations in 33 CFR
165.1123, Table 1, Item 1 will be
enforced from 9 p.m. through 10 p.m. on
June 30 through July 2, July 7 and July
8, July 14 and July 15, July 28, August
4 and August 5, August 18 and August
19, August 25 and August 26, and
September 1 through September 3, 2017
for Item 1 in Table 1 of 33 CFR
165.1123.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this publication,
call or email LT Robert Cole, Waterways
Management, U.S. Coast Guard Sector
San Diego, CA; telephone 619–278–
7656, email D11MarineEventsSD@
uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce the regulations in 33
CFR 165.1123 for a safety zone on the
waters of San Diego Bay, CA for the San
Diego, CA POPS Fireworks Display in
33 CFR 165.1123, Table 1, Item 1 of that
section, from 9 p.m. through 10 p.m. on
specific evenings from June 30, 2017 to
September 3, 2017. This action is being
taken to provide for the safety of life on
navigable waterways during the
fireworks events. Our regulation for
Southern California Annual Firework
Events for the San Diego Captain of the
Port Zone identifies the regulated areas
for the events. Under the provisions of
SUMMARY:
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Agencies
[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Rules and Regulations]
[Pages 29387-29397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13324]
=======================================================================
-----------------------------------------------------------------------
SUSQUEHANNA RIVER BASIN COMMISSION
18 CFR Parts 806 and 808
Review and Approval of Projects; Hearings and Enforcement Actions
AGENCY: Susquehanna River Basin Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document contains rules that would amend the regulations
of the Susquehanna River Basin Commission (Commission) to clarify
application requirements and standards for review of projects, add a
subpart to provide for registration of grandfathered projects, and
revise requirements dealing with hearings and enforcement actions.
These rules are designed to enhance the Commission's existing
authorities to manage the water resources of the basin and add
regulatory clarity.
[[Page 29388]]
DATES: This rule is effective July 1, 2017, except for the amendments
to Sec. 806.4(a)(1)(iii) and (a)(2)(iv) and the addition of subpart E
to part 806 which are effective January 1, 2018.
ADDRESSES: Susquehanna River Basin Commission, 4423 N. Front Street,
Harrisburg, PA 17110-1788.
FOR FURTHER INFORMATION CONTACT: Jason E. Oyler, Esq., General Counsel,
telephone: 717-238-0423, ext. 1312; fax: 717-238-2436; email:
joyler@srbc.net. Also, for further information on the final rulemaking,
including the comment response document, visit the Commission's Web
site at www.srbc.net.
SUPPLEMENTARY INFORMATION: Notice of proposed rulemaking was published
in the Federal Register on September 21, 2016 (81 FR 64812); New York
Register on October 5, 2016; Pennsylvania Bulletin on October 8, 2016;
and Maryland Register on October 14, 2017. The Commission convened four
public hearings: On November 3, 2016, in Harrisburg, Pennsylvania; on
November 9, 2016, in Binghamton, New York; on November 10, 2016, in
Williamsport, Pennsylvania; and on December 8, 2016, in Annapolis,
Maryland. A written comment period was held open through January 30,
2017.
The Commission received 14 written public comments in addition to
testimony received at the public hearings. The Commission has prepared
a comment response document, which is available to the public at
www.srbc.net. Comments that led to a change to the proposed rulemaking
and their responses are discussed below.
Registration of Grandfathered Projects, Subpart E and Sec.
806.4(a)(1)(iii) and (a)(2)(iv)
Comment: The Commission should allow projects to register a
grandfathered amount previously determined by the Commission if it is
not seeking a higher amount through the registration process.
Response: The Commission agrees that previous grandfathering
determinations should be honored if the project wishes to register that
amount. A new paragraph (c) is added in Sec. 806.44 allowing the
Executive Director to use past grandfathering determinations, and
revisions are made to Sec. 806.42(b) allowing the Commission to waive
certain registration information if a project is relying on a past
grandfathering determination.
Comment: Ongoing reporting requirements need to be linked to member
jurisdiction reporting to avoid duplication of effort and confusion.
Response: The Commission agrees with the commenter that it is
important to avoid unnecessary duplication of effort with state law
requirements. Section 806.43(c) notes that if quantity reporting is
required by the member jurisdiction where the project is located, the
Commission may accept that reporting to satisfy the requirements of
this paragraph. This evidences the Commission's intent to use its best
efforts to accept state reporting requirements where appropriate. The
Commission will add language to Sec. Sec. 806.42(a)(6) and 806.43(c)
to clarify its intention to rely on member jurisdiction reporting where
it is able, and that any additional reporting required will be because
it is not duplicated by the member jurisdiction. A new Sec. 806.43(d)
is added to emphasize the commitment of the Commission and its member
jurisdiction to share all reporting data and to further the goal of
creating a unified data set for all agencies involved.
Comment: The proposed rule at Sec. 806.4(a)(1)(iii)(A) and
(a)(2)(iv)(A) changes the current rule that allows a grandfathered
consumptive use an additional increase of up to 20,000 gpd and a
grandfathered withdrawal an additional increase of up to 100,000 gpd
before review and approval of the grandfathered activity is triggered.
This leeway should be restored for grandfathered projects.
Response: In most instances, the registration process will allow
grandfathered projects sufficient margin for operational flexibility.
However, the Commission agrees that the registration process should not
put a project in jeopardy of needing review and approval subsequent to
registration absent a change to the project. A new factor is added as
Sec. 806.44(b)(4) that allows the Executive Director to consider
whether the grandfathered amount includes an operational margin of
safety.
Comment: The proposed rule provides that the determination of the
grandfathered quantity will be based on the most recent data. This may
be too restrictive and projects should be allowed to submit more than
the last five years of data and where such data is submitted, the
Executive Director should base the determination under Sec. 806.44 on
the peak 30-day average for withdrawals and consumptive uses shown by
the data.
Response: The Commission agrees that the factor as written could be
clarified and the final rule reflects a revision to Sec. 806.44(b)(1)
to allow more than a minimum of five years of data to be submitted and
that the Executive Director will consider the withdrawal and use data
and the peak consecutive 30-day average shown by all the data
submitted.
Consumptive Use Mitigation, Sec. 806.22
Comments: The Commission should not adopt the Consumptive Use
Mitigation Policy and the changes to the Consumptive Use Mitigation
Rule.
The Commission should not shift the responsibility for physical
consumptive use mitigation to project sponsors because project sponsor
based mitigation will be more balkanized and less effective and the
Commission has powerful tools to set up projects to provide such
mitigation from the Compact.
The mitigation plan proposal should be removed or smaller projects
should be able to have an abbreviated consumptive use mitigation
alternative analysis.
New consumptive use mitigation requirements should not be applied
retroactively to existing projects upon renewal.
The proposed rule should be revised to allow greater use of
groundwater storage and quarries and be more flexible with respect to
the ``no impacts'' to surface water requirements for such mitigation.
The Commission should focus its mitigation requirements to the low
flow period.
All references to water critical planning areas should be removed.
Article 11 of the Compact provides for designation of protected areas.
This concept appears to circumvent those procedures.
Water critical areas should not be based on member jurisdiction
planning areas and it should not be a mechanism to require mitigation
for pre-compact consumptive use.
Response: The Commission has reviewed the detailed comments
regarding how the Commission requires consumptive use mitigation and
the options of projects to provide such mitigation. The Commission will
further examine and reevaluate its policies and procedures for
consumptive use and consumptive use mitigation in a more comprehensive
fashion. As a result, the Commission will not move forward with the
changes to the Consumptive Use Mitigation Policy and the consumptive
use mitigation rule as follows. The definition of ``water critical
area'' in Sec. 806.3 is removed and all references to water critical
areas are removed from Sec. Sec. 806.22 and 808.1. The reference and
changes associated with a mitigation plan in Sec. 806.22(b) are
removed. The
[[Page 29389]]
changes associated with amending the 90 day mitigation requirement to
45 days in Sec. 806.22(b)(1)(i) and (ii) are removed and reserved for
the reevaluation process for consumptive use mitigation described
above.
Project Review Application Procedures and Standards for Review and
Approval--18 CFR Part 806, Subparts B and C
Comment: The Commission should clarify how the alternatives
analysis under Sec. 806.14(b)(2)(v) differs from the previous
provision in the current rules at Sec. 806.14(b)(1)(iii) and specify
what is expected from applicants.
Response: The purpose for this requirement is to document the
project sponsor's consideration of alternatives during planning of the
proposed project to include, but not be limited to, identification of
reasonable alternatives to the proposed water withdrawal project, the
extent of the project sponsor's economic and technical investigation,
the adequacy of the source to meet the demand, an assessment of the
potential environmental impact, and measures for avoidance or
minimization of adverse impact of each alternative. Specifically, the
alternatives analysis should include identification of reasonable
alternative water sources and locations, including opportunities for
uses of lesser quality waters; project footprint and infrastructure;
opportunities for water conservation or water saving technology;
requirements of the uses of the water as related to the proposed
locations; the economic feasibility of the alternative(s) and technical
opportunities or limitations identified in the evaluation of reasonable
alternate sites. The Commission is preparing a draft policy to outline
how alternative analyses should be conducted and evaluated, and will
release it for public comment prior to consideration for Commission
adoption. In addition, on final rulemaking, the Commission will adjust
the language of Sec. 806.14(b)(1)(v) to make clear that the analysis
is needed only for new projects and for major modifications that seek
to increase the surface water withdrawal.
Comment: The Commission should reconcile the application
requirements in Sec. 806.14 to recognize that the potential for waiver
of the aquifer testing requirements in Sec. 806.12.
Response: The Commission agrees and has revised Sec.
806.14(b)(2)(i) and (d)(2)(i).
Comment: The Commission should clarify whether renewals that
involve a major modification should be handled under the new
application and major modification standards in Sec. 806.14(a) and (b)
or in the renewal standards in Sec. 806.14(c) and (d).
Response: The Commission agrees that the rule should be clarified
and proposes changes to Sec. 806.14(c) and 806.14(d)(2), (4) and (6)
to establish that renewal applications, with either minor or major
modifications, are subject to Sec. 806.14(c) and (d).
Comment: The Commission should accept other types of certified mail
proof of delivery beyond the US Postal Service under Sec. 806.15(g).
Response: The Commission agrees and Sec. 806.15(g) is revised to
include the verified return delivery receipt from a comparable delivery
service to the U.S. Postal Service.
Comment: The Commission should revise Sec. 806.15(b)(3) to clarify
which property is subject to the notice requirements and should read
``where the property of such property owner is served by a public water
supply.''
Response: The Commission agrees and the final rulemaking is revised
accordingly.
Comment: The Commission should exempt AMD passive treatment systems
from the requirements for mining and construction dewatering under
Sec. Sec. 806.14(b)(6) and (d)(6) and 806.23(b)(5).
Response: The Commission has not extended its review jurisdiction
over passive AMD treatment facilities and nothing in the proposed rule
was meant to alter that long standing determination. Accordingly, the
final rule contains revisions to Sec. Sec. 806.14(b)(6) and (d)(6) and
806.23(b)(5) to remove the word ``gravity-drained'' and clarify its
application to ``AMD facilities that qualify as a withdrawal.''
Miscellaneous Changes
Comment: Including in Sec. 808.2(a) that the 30 day appeal period
can run from publication on the Commission's Web site creates issues,
including knowing whether the appeal period runs from publication on
the Web site or the Federal Register and the fact that it is not always
clear when something is posted to a Web site or is easily found on the
Web site.
Response: The final rule revises Sec. 808.2(a) to remove this
language. The 30-day appeal period for third party appeals will run
from the date of publication in the Federal Register.
Comment: The addition of ``or other fluids associated with the
development of natural gas resources'' to the definition of
``production fluids'' under Sec. 806.3 is inaccurate and over-
inclusive. The revised definition of production fluids would cause
confusion with the member jurisdiction terminology. The commenter is
supportive of the stated goal of this change and proposed additional
language to be added in other parts of regulations.
Response: The final rule removes the change to the definition of
``production fluid.'' The revision proposed by the commenter will be
evaluated for inclusion in a future rulemaking.
Comment: The addition of ``consumptive use'' to the definition of
``facility'' in Sec. 806.3 is unwarranted as the definition of
``facility'' matches the definition in the Compact.
Response: The final rule will remove the amendment to the
definition of ``facility''. However, the definition of facility
includes plants, structures, machinery and equipment acquired,
constructed, operated or maintained for the beneficial use of water
resources that includes the consumptive use of water.
The Commission also is making additional housekeeping changes on
the final rulemaking:
(1) Sec. 806.6(b)(6) (related to transfers of approvals) was added
to recognize registered grandfathered aspects of a project under
subpart E.
(2) The phrase ``hydro report'' in Sec. 806.14(d)(2)(ii) was
clarified to ``hydrogeologic report''.
(3) The word ``Commission's'' is removed from Sec. 806.41(c).
Transition Issues
As noted in the DATES section, this rule will take effect on July
1, 2017, with the exception of the adoption of subpart E (related to
registration of grandfathered projects) and the corresponding changes
to Sec. 806.4(a)(1)(iii) and (a)(2)(iv), which take effect on January
1, 2018.
Coincident with the authorization to adopt this final rulemaking,
the Commission also adopted a Regulatory Program Fee Schedule that sets
forth the fee for registration for grandfathered projects. This fee
schedule is available on the Commission's Web site at www.srbc.net/policies/policies.htm.
List of Subjects in 18 CFR Parts 806 and 808
Administrative practice and procedure, Water resources.
Accordingly, for the reasons set forth in the preamble, the
Susquehanna River Basin Commission amends 18 CFR parts 806 and 808 as
follows:
PART 806--REVIEW AND APPROVAL OF PROJECTS
0
1. The authority citation for part 806 continues to read as follows:
[[Page 29390]]
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. Amend Sec. 806.1 by revising paragraphs (a) and (f) to read as
follows:
Sec. 806.1806.1 Scope.
(a) This part establishes the scope and procedures for review and
approval of projects under section 3.10 of the Susquehanna River Basin
Compact, Pub. L. 91-575, 84 Stat. 1509, et seq., (the compact) and
establishes special standards under section 3.4(2) of the compact
governing water withdrawals, the consumptive use of water, and
diversions. The special standards established pursuant to section
3.4(2) shall be applicable to all water withdrawals and consumptive
uses in accordance with the terms of those standards, irrespective of
whether such withdrawals and uses are also subject to project review
under section 3.10. This part, and every other part of 18 CFR chapter
VIII, shall also be incorporated into and made a part of the
comprehensive plan.
* * * * *
(f) Any Commission forms or documents referenced in this part may
be obtained from the Commission at 4423 North Front Street, Harrisburg,
PA 17110, or from the Commission's Web site at www.srbc.net.
0
3. In Sec. 806.3, add, in alphabetical order, a definition for
``Wetlands'' to read as follows:
Sec. 806.3806.3 Definitions.
* * * * *
Wetlands. Those areas that are inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands
generally include swamps, marshes, bogs, and similar areas.
* * * * *
0
4. Amend Sec. 806.4 by revising paragraphs (a) introductory text,
(a)(1)(iii), (a)(2) introductory text, and (a)(2)(iv) and adding
paragraph (a)(3)(vii) to read as follows:
Sec. 806.4806.4 Projects requiring review and approval.
(a) Except for activities relating to site evaluation, to aquifer
testing under Sec. 806.12 or to those activities authorized under
Sec. 806.34, no person shall undertake any of the following projects
without prior review and approval by the Commission. The project
sponsor shall submit an application in accordance with subpart B of
this part and shall be subject to the applicable standards in subpart C
of this part.
(1) * * *
(iii) With respect to projects that existed prior to January 23,
1971, any project:
(A) Registered in accordance with subpart E of this part that
increases its consumptive use by any amount over the quantity
determined under Sec. 806.44;
(B) Increasing its consumptive use to an average of 20,000 gpd or
more in any consecutive 30-day period; or
(C) That fails to register its consumptive use in accordance with
subpart E of this part.
* * * * *
(2) Withdrawals. Any project, including all of its sources,
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. Sec. 806.21 and 806.23. Hydroelectric projects, except
to the extent that such projects involve a withdrawal, shall be exempt
from the requirements of this section regarding withdrawals; provided,
however, that nothing in this paragraph (a)(2) shall be construed as
exempting hydroelectric projects from review and approval under any
other category of project requiring review and approval as set forth in
this section, Sec. 806.5, or part 801 of this chapter. 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 that existed prior to
July 13, 1978, surface water projects that existed prior to November
11, 1995, or projects that existed prior to January 1, 2007, with
multiple sources involving a withdrawal of a consecutive 30-day average
of 100,000 gpd or more that did not require Commission review and
approval, any project:
(A) Registered in accordance with subpart E of this part that
increases its withdrawal by any amount over the quantity determined
under Sec. 806.44;
(B) Increasing its withdrawal individually or cumulatively from all
sources to an average of 100,000 gpd or more in any consecutive 30-day
period; or
(C) That fails to register its withdrawals in accordance with
subpart E of this part.
* * * * *
(3) * * *
(vii) The diversion of any flowback or production fluids from
hydrocarbon development projects located outside the basin to an in-
basin treatment or disposal facility authorized under separate
government approval to accept flowback or production fluids, shall not
be subject to separate review and approval as a diversion under this
paragraph (c)(3), provided the fluids are handled, transported and
stored in compliance with all standards and requirements of the
applicable member jurisdiction.
* * * * *
0
5. Amend Sec. 806.6 by adding paragraph (b)(6) to read as follows:
Sec. 806.6806.6 Transfer of approvals.
* * * * *
(b) * * *
(6) The project is registered under subpart E of this part.
* * * * *
0
6. Amend Sec. 806.11 by revising paragraph (b) to read as follows:
Sec. 806.11 Preliminary consultations.
* * * * *
(b) Except for project sponsors of electric power generation
projects under Sec. 801.12(c)(2) of this chapter, preliminary
consultation is optional for the project sponsor (except with respect
to aquifer test plans under Sec. 806.12) but shall not relieve the
sponsor from complying with the requirements of the compact or with
this part.
0
7. Amend Sec. 806.12 by revising paragraph (a) and adding paragraph
(f) to read as follows:
Sec. 806.12 Constant-rate aquifer testing.
(a) Prior to submission of an application pursuant to Sec. 806.13,
a project sponsor seeking approval for a new groundwater withdrawal, a
renewal of an expiring groundwater withdrawal, or an increase of a
groundwater withdrawal shall perform a constant-rate aquifer test in
accordance with this section.
* * * * *
(f) Review of submittals under this section may be terminated by
the Commission in accordance with the procedures set forth in Sec.
806.16.
0
8. Revise Sec. 806.14 to read as follows:
Sec. 806.14 Contents of application.
(a) Applications for a new project or a major modification to an
existing approved project shall include, but not be limited to, the
following information and, where applicable, shall be subject to the
requirements in paragraph (b) of this section and submitted on forms
and in the manner prescribed by the Commission.
(1) Identification of project sponsor including any and all
proprietors,
[[Page 29391]]
corporate officers or partners, the mailing address of the same, and
the name of the individual authorized to act for the sponsor.
(2) Project location, including latitude and longitude coordinates
in decimal degrees accurate to within 10 meters, the project location
displayed on a map with a 7.5-minute USGS topographic base, and
evidence of legal access to the property upon which the project is
proposed.
(3) Project description, including: Purpose, proposed quantity to
be withdrawn or consumed, if applicable, and identification of all
water sources related to the project including location and date of
initiation of each source.
(4) Anticipated impact of the project, including impacts on
existing water withdrawals, nearby surface waters, and threatened or
endangered species and their habitats.
(5) The reasonably foreseeable need for the proposed quantity of
water to be withdrawn or consumed, including supporting calculations,
and the projected demand for the term of the approval.
(6) A metering plan that adheres to Sec. 806.30.
(7) Evidence of coordination and compliance with member
jurisdictions regarding all necessary permits or approvals required for
the project from other federal, state or local government agencies
having jurisdiction over the project.
(8) Project estimated completion date and estimated construction
schedule.
(9) Draft notices required by Sec. 806.15.
(10) The Commission may also require the following information as
deemed necessary:
(i) Engineering feasibility.
(ii) Ability of the project sponsor to fund the project.
(b) Additional information is required for a new project or a major
modification to an existing approved project as follows.
(1) Surface water. (i) Water use and availability.
(ii) Project setting, including surface water characteristics,
identification of wetlands, and site development considerations.
(iii) Description and design of intake structure.
(iv) Anticipated impact of the proposed project on local flood
risk, recreational uses, fish and wildlife, and natural environment
features.
(v) For new projects and major modifications to increase a
withdrawal, alternatives analysis for a withdrawal proposed in settings
with a drainage area of 50 miles square or less, or in a waterway with
exceptional water quality, or as required by the Commission.
(2) Groundwater--(i) With the exception of mining related
withdrawals solely for the purpose of dewatering; construction
dewatering withdrawals and withdrawals for the sole purpose of
groundwater or below water table remediation generally which are
addressed in paragraph (b)(6) of this section, the project sponsor
shall provide an interpretative report that includes all monitoring and
results of a constant-rate aquifer test consistent with Sec. 806.12
and an updated groundwater availability estimate if changed from the
aquifer test plan, unless a request for a waiver of the requirements of
Sec. 806.12 is granted. The project sponsor shall obtain Commission
approval of the test procedures prior to initiation of the constant-
rate aquifer test.
(ii) Water use and availability.
(iii) Project setting, including nearby surface water features.
(iv) Groundwater elevation monitoring plan for all production
wells.
(v) Alternatives analysis as required by the Commission.
(3) Consumptive use. (i) Consumptive use calculations, and a
mitigation plan consistent with Sec. 806.22(b).
(ii) Water conservation methods, design or technology proposed or
considered.
(iii) Alternatives analysis as required by the Commission.
(4) Into basin diversions. (i) Provide the necessary information to
demonstrate that the proposed project will meet the standards in Sec.
806.24(c).
(ii) Identification of the source and water quality characteristics
of the water to be diverted.
(5) Out of basin diversions. (i) Provide the necessary information
to demonstrate that the proposed project will meet the standards in
Sec. 806.24(b).
(ii) Project setting.
(6) Other projects. Other projects, including without limitation,
mine dewatering, construction dewatering, water resources remediation
projects, and AMD remediation facilities that qualify as a withdrawal.
(i) In lieu of aquifer testing, report(s) prepared for any other
purpose or as required by other governmental regulatory agencies that
provides a demonstration of the hydrogeologic and/or hydrologic effects
and limits of said effects due to operation of the proposed project and
effects on local water availability.
(ii) [Reserved]
(c) All applications for renewal of expiring approved projects,
including those with minor or major modifications, shall include, but
not be limited to, the following information, and, where applicable,
shall be subject to the requirements in paragraph (d) of this section
and submitted on forms and in the manner prescribed by the Commission.
(1) Identification of project sponsor including any and all
proprietors, corporate officers or partners, the mailing address of the
same, and the name of the individual authorized to act for the sponsor.
(2) Project location, including latitude and longitude coordinates
in decimal degrees accurate to within 10 meters, the project location
displayed on map with a 7.5-minute USGS topographic base, and evidence
of legal access to the property upon which the project is located.
(3) Project description, to include, but not be limited to:
Purpose, proposed quantity to be withdrawn or consumed if applicable,
identification of all water sources related to the project including
location and date of initiation of each source, and any proposed
project modifications.
(4) The reasonably foreseeable need for the requested renewal of
the quantity of water to be withdrawn or consumed, including supporting
calculations, and the projected demand for the term of the approval.
(5) An as-built and approved metering plan.
(6) Copies of permits from member jurisdictions regarding all
necessary permits or approvals obtained for the project from other
federal, state, or local government agencies having jurisdiction over
the project.
(7) Copy of any approved mitigation or monitoring plan and any
related as-built for the expiring project.
(8) Demonstration of registration of all withdrawals or consumptive
uses in accordance with the applicable state requirements.
(9) Draft notices required by Sec. 806.15.
(d) Additional information is required for the following
applications for renewal of expiring approved projects.
(1) Surface water. (i) Historic water use quantities and timing of
use.
(ii) Changes to stream flow or quality during the term of the
expiring approval.
(iii) Changes to the facility design.
(iv) Any proposed changes to the previously authorized purpose.
(2) Groundwater--(i) The project sponsor shall provide an
interpretative report that includes all monitoring and results of any
constant-rate aquifer testing previously completed or submitted to
support the original approval. In lieu of a testing report,
[[Page 29392]]
historic operational data pumping and elevation data may be considered,
as a request for waiver of the requirements of Sec. 806.12. Those
projects that did not have constant-rate aquifer testing completed for
the original approval that was consistent with Sec. 806.12 or
sufficient historic operational pumping and groundwater elevation data
may be required to complete constant-rate aquifer testing consistent
with Sec. 806.12, prepare and submit an interpretative report that
includes all monitoring and results of any constant-rate aquifer test.
(ii) An interpretative report providing analysis and comparison of
current and historic water withdrawal and groundwater elevation data
with previously completed hydrogeologic report.
(iii) Current groundwater availability analysis assessing the
availability of water during a 1-in-10 year recurrence interval under
the existing conditions within the recharge area and predicted for term
of renewal (i.e., other users, discharges, and land development within
the groundwater recharge area).
(iv) Groundwater elevation monitoring plan for all production
wells.
(v) Changes to the facility design.
(vi) Any proposed changes to the previously authorized purpose.
(3) Consumptive use. (i) Consumptive use calculations, and a copy
of the approved plan or method for mitigation consistent with Sec.
806.22.
(ii) Changes to the facility design.
(iii) Any proposed changes to the previously authorized purpose.
(4) Into basin diversion. (i) Provide the necessary information to
demonstrate that the proposed project will meet the standards in Sec.
806.24(c).
(ii) Identification of the source and water quality characteristics
of the water to be diverted.
(iii) Changes to the facility design.
(iv) Any proposed changes to the previously authorized purpose.
(5) Out of basin diversion. (i) Historic water use quantities and
timing of use.
(ii) Changes to stream flow or quality during the term of the
expiring approval.
(iii) Changes to the facility design.
(iv) Any proposed changes to the previously authorized purpose,
(6) Other projects. Other projects, including without limitation,
mine dewatering, water resources remediation projects, and AMD
facilities that qualify as a withdrawal.
(i) Copy of approved report(s) prepared for any other purpose or as
required by other governmental regulatory agencies that provides a
demonstration of the hydrogeologic and/or hydrologic effects and limits
of said effects due to operation of the project and effects on local
water availability.
(ii) Any data or reports that demonstrate effects of the project
are consistent with those reports provided in paragraph (d)(6)(i) of
this section.
(iii) Demonstration of continued need for expiring approved water
source and quantity.
(iv) Changes to the facility design.
(v) Any proposed changes to the previously authorized purpose.
(e) A report about the project prepared for any other purpose, or
an application for approval prepared for submission to a member
jurisdiction, may be accepted by the Commission provided the said
report or application addresses all necessary items on the Commission's
form or listed in this section, as appropriate.
(f) Applications for minor modifications must be complete and will
be on a form and in a manner prescribed by the Commission. Applications
for minor modifications must contain the following:
(1) Description of the project;
(2) Description of all sources, consumptive uses and diversions
related to the project;
(3) Description of the requested modification;
(4) Statement of the need for the requested modification; and
(5) Demonstration that the anticipated impact of the requested
modification will not adversely impact the water resources of the
basin.
(g) For any applications, the Executive Director or Commission may
require other information not otherwise listed in this section.
0
9. Amend Sec. 806.15 by revising paragraph (a), adding paragraph
(b)(3), and revising paragraph (g) to read as follows:
Sec. 806.15 Notice of application.
(a) Except with respect to paragraphs (h) and (i) of this section,
any project sponsor submitting an application to the Commission shall
provide notice thereof to the appropriate agency of the member State,
each municipality in which the project is located, and the county and
the appropriate county agencies in which the project is located. The
project sponsor shall also publish notice of submission of the
application at least once in a newspaper of general circulation serving
the area in which the project is located. The project sponsor shall
also meet any of the notice requirements set forth in paragraphs (b)
through (f) of this section, if applicable. All notices required under
this section shall be provided or published no later than 20 days after
submission of the application to the Commission and shall contain a
description of the project, its purpose, the requested quantity of
water to be withdrawn, obtained from 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) * * *
(3) For groundwater withdrawal applications, the Commission or
Executive Director may allow notification of property owners through
alternate methods where the property of such property owner is served
by a public water supply.
* * * * *
(g) The project sponsor shall provide the Commission with a copy of
the United States Postal Service return receipt or the verified return
receipt from a comparable delivery service for the notifications to
agencies of member States, municipalities and appropriate county
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 publication
and records of notices sent under this section for the duration of the
approval related to such notices.
* * * * *
0
10. Amend Sec. 806.21 by revising paragraphs (a) and (c)(1) to read as
follows:
Sec. 806.21 General standards.
(a) A project shall be feasible and not be detrimental to the
proper conservation, development, management, or control of the water
resources of the basin.
* * * * *
(c) * * *
(1) The Commission may suspend the review of any application under
this part if the project is subject to the lawful jurisdiction of any
member jurisdiction or any political subdivision thereof, and such
member jurisdiction or political subdivision has disapproved or denied
the project. Where such disapproval or denial is reversed on appeal,
the appeal is final, and the project sponsor
[[Page 29393]]
provides the Commission with a certified copy of the decision, the
Commission shall resume its review of the application. Where, however,
an application has been suspended hereunder for a period greater than
three years, the Commission may terminate its review. Thereupon, the
Commission shall notify the project sponsor of such termination and
that the application fee paid by the project sponsor is forfeited. The
project sponsor may reactivate the terminated application by reapplying
to the Commission, providing evidence of its receipt of all necessary
governmental approvals and, at the discretion of the Commission,
submitting new or updated information.
* * * * *
0
11. Amend Sec. 806.22 by revising paragraphs (b) introductory text,
(b)(3), (e), and (f)(3) and (9) to read as follows:
Sec. 806.22 Standards for consumptive use of water.
* * * * *
(b) Mitigation. All project sponsors whose consumptive use of water
is subject to review and approval under Sec. 806.4, Sec. 806.5, Sec.
806.6, or Sec. 806.17 shall mitigate such consumptive use. Except to
the extent that the project involves the diversion of the waters out of
the basin, public water supplies shall be exempt from the requirements
of this section regarding consumptive use; provided, however, that
nothing in this section shall be construed to exempt individual
consumptive users connected to any such public water supply from the
requirements of this section. Mitigation may be provided by one or a
combination of the following:
* * * * *
(3) Provide monetary payment to the Commission, for all water
consumptively used over the course of a year, in an amount and manner
prescribed by the Commission.
* * * * *
(e) Approval by rule for consumptive uses. (1) General rule. Except
with respect to projects involving hydrocarbon development subject to
the provisions of paragraph (f) of this section, any project who is
solely supplied water for consumptive use by 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.
(2) Notification of intent. Prior to undertaking a project or
increasing 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 appropriate application fee,
along with any required attachments.
(3) Time of notice. Within 20 days after submittal of an NOI under
paragraph (e)(2) of this section, the project sponsor shall satisfy the
notice requirements set forth in Sec. 806.15.
(4) Metering, daily use monitoring, and quarterly reporting. The
project sponsor shall comply with metering, daily use monitoring, and
quarterly reporting as specified in Sec. 806.30.
(5) Standard conditions. The standard conditions set forth in Sec.
806.21 shall apply to projects approved by rule.
(6) Mitigation. The project sponsor shall comply with mitigation in
accordance with paragraph (b)(2) or (3) of this section.
(7) Compliance with other laws. The project sponsor shall obtain
all necessary permits or approvals required for the project from other
federal, state or local government agencies having jurisdiction over
the project. The Commission reserves the right to modify, suspend or
revoke any approval under this paragraph (e) if the project sponsor
fails to obtain or maintain such approvals.
(8) Decision. The Executive Director may grant, deny, suspend,
revoke, modify or condition an approval to operate under this approval
by rule, or renew an existing approval by rule previously granted
hereunder, and will notify the project sponsor of such determination,
including the quantity of consumptive use approved.
(9) Term. Approval by rule shall be effective upon written
notification from the Executive Director to the project sponsor, shall
expire 15 years from the date of such notification, and shall be deemed
to rescind any previous consumptive use approvals.
(f) * * *
(3) Within 20 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, revoke, modify
or condition an approval to operate under this approval by rule, or
renew an existing approval by rule granted hereunder, 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). Any sources of
water approved pursuant to this section shall be further subject to any
approval or authorization required by the member jurisdiction.
* * * * *
0
12. Amend Sec. 806.23 by revising paragraphs (b)(2) and (b)(3)(i) and
adding paragraph (b)(5) to read as follows:
Sec. 806.23 Standards for water withdrawals.
* * * * *
(b) * * *
(2) The Commission may deny an application, limit or condition an
approval to ensure that the withdrawal will not cause significant
adverse impacts to the water resources of the basin. The Commission may
consider, without limitation, the following in its consideration of
adverse impacts: Lowering of groundwater or stream flow levels;
groundwater and surface water availability, including cumulative uses;
rendering competing supplies unreliable; affecting other water uses;
causing water quality degradation that may be injurious to any existing
or potential water use; affecting fish, wildlife or other living
resources or their habitat; causing permanent loss of aquifer storage
capacity; affecting wetlands; or affecting low flow of perennial or
intermittent streams.
(3) * * *
(i) Limit the quantity, timing or rate of withdrawal or level of
drawdown, including requiring a total system limit.
* * * * *
(5) For projects consisting of mine dewatering, water resources
remediation, and AMD facilities that qualify as a withdrawal, review of
adverse impacts will have limited consideration of groundwater
availability, causing permanent loss of aquifer storage and lowering of
groundwater levels provided these projects are operated in accordance
with the laws and regulations of the member jurisdictions.
0
13. Amend Sec. 806.30 by revising the introductory text and paragraph
(a)(4) and adding paragraph (a)(8) to read as follows:
Sec. 806.30 Monitoring.
The Commission, as part of the project review, shall evaluate the
proposed methodology for monitoring consumptive uses, water withdrawals
and mitigating flows, including flow metering devices, stream gages,
and other facilities used to measure the withdrawals or consumptive use
of the project or the rate of stream flow. If the
[[Page 29394]]
Commission determines that additional flow measuring, metering or
monitoring devices are required, these shall be provided at the expense
of the project sponsor, installed in accordance with a schedule set by
the Commission, and installed per the specifications and
recommendations of the manufacturer of the device, and shall be subject
to inspection by the Commission at any time.
(a) * * *
(4) Measure groundwater levels in all approved production and other
wells, as specified by the Commission.
* * * * *
(8) Perform other monitoring for impacts to water quantity, water
quality and aquatic biological communities, as specified by the
Commission.
* * * * *
0
14. Amend Sec. 806.31 by revising paragraphs (d) and (e) to read as
follows:
Sec. 806.31 Term of approvals.
* * * * *
(d) If the Commission determines that a project has been abandoned,
by evidence of nonuse for a period of time and under such circumstances
that an abandonment may be inferred, the Commission may revoke the
approval for such withdrawal, diversion or consumptive use.
(e) If a project sponsor submits an application to the Commission
no later than six months prior to the expiration of its existing
Commission docket approval or no later than one month prior to the
expiration of its existing ABR or NOI approval, the existing approval
will be deemed extended until such time as the Commission renders a
decision on the application, unless the existing approval or a
notification in writing from the Commission provides otherwise.
0
15. Add subpart E to read as follows:
Subpart E--Registration of Grandfathered Projects
Sec.
806.40 Applicability.
806.41 Registration and eligibility.
806.42 Registration requirements.
806.43 Metering and monitoring requirements.
806.44 Determination of grandfathered quantities.
806.45 Appeal of determination.
Sec. 806.40 Applicability.
(a) This subpart is applicable to the following projects, which
shall be known as grandfathered projects:
(1) The project has an associated average consumptive use of 20,000
gpd or more in any consecutive 30-day period all or part of which is a
pre-compact consumptive use that has not been approved by the
Commission pursuant to Sec. 806.4.
(2) The project has an associated groundwater withdrawal average of
100,000 gpd or more in any consecutive 30-day period all or part of
which was initiated prior to July 13, 1978, that has not been approved
by the Commission pursuant to Sec. 806.4.
(3) The project has an associated surface water withdrawal average
of 100,000 gpd or more in any consecutive 30-day period all or part of
which was initiated prior to November 11, 1995, that has not been
approved by the Commission pursuant to Sec. 806.4.
(4) The project (or an element of the project) has been approved by
the Commission but has an associated consumptive use or water
withdrawal that has not been approved by the Commission pursuant to
Sec. 806.4.
(5) Any project not included in paragraphs (a)(2) through (4) of
this section that has a total withdrawal average of 100,000 gpd or more
in any consecutive 30-day average from any combination of sources which
was initiated prior to January 1, 2007, that has not been approved by
the Commission pursuant to Sec. 806.4.
(6) Any source associated with a project included in paragraphs
(a)(2) through (5) of this section regardless of quantity.
(b) A project, including any source of the project, that can be
determined to have been required to seek Commission review and approval
under the pertinent regulations in place at the time is not eligible
for registration as a grandfathered project.
Sec. 806.41 Registration and eligibility.
(a) Project sponsors of grandfathered projects identified in Sec.
806.40 shall submit a registration to the Commission, on a form and in
a manner prescribed by the Commission, by December 31, 2019.
(b) Any grandfathered project that fails to register under
paragraph (a) of this section shall be subject to review and approval
under Sec. 806.4.
(c) Any project that is not eligible to register under paragraph
(a) of this section shall be subject to review and approval under Sec.
806.4.
(d) The Commission may establish fees for obtaining and maintaining
registration in accordance with Sec. 806.35.
(e) A registration under this subpart may be transferred pursuant
to Sec. 806.6.
Sec. 806.42 Registration requirements.
(a) Registrations shall include the following information:
(1) Identification of project sponsor including any and all
proprietors, corporate officers or partners, the mailing address of the
same, and the name of the individual authorized to act for the sponsor.
(2) Description of the project and site in terms of:
(i) Project location, including latitude and longitude coordinates
in decimal degrees accurate to within 10 meters.
(ii) Project purpose.
(3) Identification of all sources of water, including the date the
source was put into service, each source location (including latitude
and longitude coordinates in decimal degrees accurate to within 10
meters), and if applicable, any approved docket numbers.
(4) Identification of current metering and monitoring methods for
water withdrawal and consumptive use.
(5) Identification of current groundwater level or elevation
monitoring methods at groundwater sources.
(6) All quantity data for water withdrawals and consumptive use for
a minimum of the previous five calendar years. If the project sponsor
registering submitted the water withdrawal and consumptive use data for
the previous five calendar years to a member jurisdiction, that data
will satisfy this requirement. A project sponsor registering may
provide supplementary data related to water withdrawals and consumptive
use quantities. If quantity data are not available, any information
available upon which a determination of quantity could be made.
(7) For consumptive use, description of processes that use water,
identification of water returned to the Basin, history of the use,
including process changes, expansions and other actions that would have
an impact on the amount of water consumptively used during the past
five calendar years.
(8) Based on the data provided, the quantity of withdrawal for each
individual source and consumptive use the project sponsor requests to
be grandfathered by the Commission.
(9) Any ownership or name changes to the project since January 1,
2007.
(b) The Commission may require any other information it deems
necessary for the registration process or waive any information
required under paragraph (a) of this section for projects relying on a
prior determination of the Commission.
Sec. 806.43 Metering and monitoring requirements.
(a) As a part of the registration process, the Commission shall
review the current metering and monitoring for grandfathered
withdrawals and consumptive uses.
[[Page 29395]]
(b) The Commission may require a metering and monitoring plan for
the project sponsor to follow.
(c) Project sponsors, as an ongoing obligation of their
registration, shall report to the Commission all information specified
in the grandfathering determination under Sec. 806.44 in a form and
manner determined by the Commission. If water withdrawal and
consumptive use quantity reporting is required by the member
jurisdiction where the project is located, the Commission shall accept
that reported quantity to satisfy the requirements of this paragraph
(c), unless the Commission finds that additional data is needed that is
not required by the member jurisdiction.
(d) Any data generated or collected under paragraph (c) of this
section will be made available to the member jurisdictions in a manner
and timeframe mutually agreeable to both the Commission and the
jurisdiction.
Sec. 806.44 Determination of grandfathered quantities.
(a) For each registration submitted, the Executive Director shall
determine the grandfathered quantity for each withdrawal source and
consumptive use.
(b) In making a determination, the following factors should be
considered:
(1) The withdrawal and use data and the peak consecutive 30-day
average shown by the data;
(2) The reliability and accuracy of the data and/or the meters or
measuring devices;
(3) Determination of reasonable and genuine usage of the project,
including any anomalies in the usage;
(4) Whether the grandfathered amount includes an operational margin
of safety; and
(5) Other relevant factors.
(c) The Executive Director, in lieu of a determination under
paragraph (b) of this section, may accept a previous grandfathering
determination by the Commission at the request of the project sponsor.
Sec. 806.45 Appeal of determination.
(a) A final determination of the grandfathered quantity by the
Executive Director must be appealed to the Commission within 30 days
from actual notice of the determination.
(b) The Commission shall appoint a hearing officer to preside over
appeals under this section. Hearings shall be governed by the
procedures set forth in part 808 of this chapter.
PART 808--HEARINGS AND ENFORCEMENT ACTIONS
0
16. 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.
0
17. Revise Sec. 808.1 to read as follows:
Sec. 808.1808.1 Public hearings.
(a) Required hearings. A public hearing shall be conducted in the
following instances:
(1) Addition of projects or adoption of amendments to the
comprehensive plan, except as otherwise provided by section 14.1 of the
compact.
(2) Review and approval of diversions.
(3) Imposition or modification of rates and charges.
(4) Determination of protected areas.
(5) Drought emergency declarations.
(6) Hearing requested by a member jurisdiction.
(7) As otherwise required by sections 3.5(4), 4.4, 5.2(e), 6.2(a),
8.4, and 10.4 of the compact.
(b) Optional hearings. A public hearing may be conducted by the
Commission or the Executive Director in any form or style chosen by the
Commission or Executive Director in the following instances:
(1) Proposed rulemaking.
(2) Consideration of projects, except projects approved pursuant to
memoranda of understanding with member jurisdictions.
(3) Adoption of policies and technical guidance documents.
(4) When it is determined that a hearing is necessary to give
adequate consideration to issues related to public health, safety and
welfare, or protection of the environment, or to gather additional
information for the record or consider new information on a matter
before the Commission.
(c) Notice of public hearing. At least 20 days before any public
hearing required by the compact, notices stating the date, time, place
and purpose of the hearing including issues of interest to the
Commission shall be published at least once in a newspaper of general
circulation in the area affected. In all other cases, at least 20 days
prior to the hearing, notice shall be posted on the Commission Web
site, sent to the parties who, to the Commission's knowledge, will
participate in the hearing, and sent to persons, organizations and news
media who have made requests to the Commission for notices of hearings
or of a particular hearing. With regard to rulemaking, hearing notices
need only be forwarded to the directors of the New York Register, the
Pennsylvania Bulletin, the Maryland Register and the Federal Register,
and it is sufficient that this notice appear in the Federal Register at
least 20 days prior to the hearing and in each individual state
publication at least 10 days prior to any hearing scheduled in that
state.
(d) Standard public hearing procedure. (1) Hearings shall be open
to the public. Participants may be any person, including a project
sponsor, wishing to appear at the hearing and make an oral or written
statement. Statements shall be made a part of the record of the
hearing, and written statements may be received up to and including the
last day on which the hearing is held, or within 10 days or a
reasonable time thereafter as may be specified by the presiding
officer.
(2) Participants are encouraged to file with the Commission at its
headquarters written notice of their intention to appear at the
hearing. The notice should be filed at least three days prior to the
opening of the hearing.
(e) Representative capacity. Participants wishing to be heard at a
public hearing may appear in person or be represented by an attorney or
other representative. A governmental authority may be represented by
one of its officers, employees or by a designee of the governmental
authority.
(f) Description of project. When notice of a public hearing is
issued, there shall be available for inspection, consistent with the
Commission's Access to Records Policy, all plans, summaries, maps,
statements, orders or other supporting documents which explain, detail,
amplify, or otherwise describe the project the Commission is
considering. Instructions on where and how the documents may be
obtained will be included in the notice.
(g) Presiding officer. A public hearing shall be presided over by
the Commission chair, the Executive Director, or any member or designee
of the Commission or Executive Director. The presiding officer shall
have full authority to control the conduct of the hearing and make a
record of the same.
(h) Transcript. Whenever a project involving a diversion of water
is the subject of a public hearing, and at all other times deemed
necessary by the Commission or the Executive Director, a written
transcript of the hearing shall be made. A certified copy of the
transcript and exhibits shall be available for review during business
hours at the Commission's headquarters to anyone wishing to examine
them. Persons wishing to obtain a copy of the transcript of any hearing
shall make arrangements to obtain it directly from
[[Page 29396]]
the recording stenographer at their expense.
(i) Joint hearings. The Commission may conduct any public hearings
in concert with any other agency of a member jurisdiction.
0
18. Revise Sec. 808.2 to read as follows:
Sec. 808.2808.2 Administrative appeals.
(a) A project sponsor or other person aggrieved by a final action
or decision of the Executive Director shall file a written appeal with
the Commission within 30 days of the receipt of actual notice by the
project sponsor or within 30 days of publication of the action in the
Federal Register. 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. The following is a non-
exclusive list of actions by the Executive Director that are subject to
an appeal to the Commission:
(1) A determination that a project requires review and approval
under Sec. 806.5;
(2) An approval or denial of an application for transfer under
Sec. 806.6;
(3) An approval of a Notice of Intent under a general permit under
Sec. 806.17;
(4) An approval of a minor modification under Sec. 806.18;
(5) A determination regarding an approval by rule under Sec.
806.22(e) or (f);
(6) A determination regarding an emergency certificate under Sec.
806.34;
(7) Enforcement orders issued under Sec. 808.14;
(8) A finding regarding a civil penalty under Sec. 808.15(c);
(9) A determination of grandfathered quantity under Sec. 806.44;
(10) A decision to modify, suspend or revoke a previously granted
approval; and
(11) A records access determination made pursuant to Commission
policy.
(b) The appeal shall identify the specific action or decision being
appealed, 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) The Commission will determine the manner in which it will hear
the appeal. 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, 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, 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. 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.
(g) If a hearing is not granted, the Commission may set a briefing
schedule and decide the appeal based on the record before it. The
Commission may, in its discretion, schedule and hear oral argument on
an appeal.
(h)(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.
(i) Where a request for an appeal is made, the 90-day appeal period
set forth in section 3.10 (6) and Federal reservation (o) of the
compact shall not commence until the Commission has either denied the
request for or taken final action on an administrative appeal.
0
19. Revise Sec. 808.11 to read as follows:
Sec. 808.11 Duty to comply.
It shall be the duty of any person to comply with any provision of
the compact, or the Commission's rules, regulations, orders, approvals,
docket conditions, staff directives or any other requirement of the
Commission.
0
20. Revise Sec. 808.14 to read as follows:
Sec. 808.14 Orders.
(a) Whether or not an NOV has been issued, the Executive Director
may issue an order directing an alleged violator to cease and desist
any action or activity to the extent such action or activity
constitutes an alleged violation, or may issue any other order related
to the prevention of further violations, or the abatement or
remediation of harm caused by the action or activity.
(b) If the project sponsor fails to comply with any term or
condition of a docket or other approval, the commissioners or Executive
Director may issue an order suspending, modifying or revoking approval
of the docket. The commissioners may also, in their discretion,
suspend, modify or revoke a docket approval if the project sponsor
fails to obtain or maintain other federal, state or local approvals.
(c) The commissioners or Executive Director may issue such other
orders as may be necessary to enforce any provision of the compact, the
[[Page 29397]]
Commission's rules or regulations, orders, approvals, docket
conditions, or any other requirements of the Commission.
(d) It shall be the duty of any person to proceed diligently to
comply with any order issued pursuant to this section.
(e) The Commission or Executive Director may enter into a Consent
Order and Agreement with an alleged violator to resolve non-compliant
operations and enforcement proceedings in conjunction with or
separately from settlement agreements under Sec. 808.18.
0
21. Revise Sec. 808.15 to read as follows:
Sec. 808.15 Show cause proceeding.
(a) The Executive Director may issue an order requiring an alleged
violator to show cause why a penalty should not be assessed in
accordance with the provisions of this chapter and section 15.17 of the
compact. The order to the alleged violator shall:
(1) Specify the nature and duration of violation(s) that is alleged
to have occurred.
(2) Set forth the date by which the alleged violator must provide a
written response to the order.
(3) Identify the civil penalty recommended by Commission staff.
(b) The written response by the project sponsor should include the
following:
(1) A statement whether the project sponsor contests that the
violations outlined in the Order occurred;
(2) If the project sponsor contests the violations, then a
statement of the relevant facts and/or law providing the basis for the
project sponsor's position;
(3) Any mitigating factors or explanation regarding the violations
outlined in the Order; and
(4) A statement explaining what the appropriate civil penalty, if
any, should be utilizing the factors at Sec. 808.16.
(c) Based on the information presented and any relevant policies,
guidelines or law, the Executive Director shall make a written finding
affirming or modifying the civil penalty recommended by Commission
staff.
0
22. Amend Sec. 808.16 by revising paragraphs (a) introductory text and
(a)(7), adding paragraph (a)(8), and revising paragraph (b) to read as
follows:
Sec. 808.16 Civil penalty criteria.
(a) In determining the amount of any civil penalty or any
settlement of a violation, the Commission and Executive Director shall
consider:
* * * * *
(7) The length of time over which the violation occurred and the
amount of water used, diverted or withdrawn during that time period.
(8) The punitive effect of a civil penalty.
(b) The Commission and/or Executive Director retains the right to
waive any penalty or reduce the amount of the penalty recommended by
the Commission staff under Sec. 808.15(a)(3) should it be determined,
after consideration of the factors in paragraph (a) of this section,
that extenuating circumstances justify such action.
0
23. Revise Sec. 808.17 to read as follows:
Sec. 808.17 Enforcement of penalties, abatement or remedial orders.
Any penalty imposed or abatement or remedial action ordered by the
Commission or the Executive Director shall be paid or completed within
such time period as shall be specified in the civil penalty assessment
or order. The Executive Director and Commission counsel are authorized
to take such additional action as may be necessary to assure compliance
with this subpart. If a proceeding before a court becomes necessary,
the penalty amount determined in accordance with this part shall
constitute the penalty amount recommended by the Commission to be fixed
by the court pursuant to section 15.17 of the compact.
0
24. Revise Sec. 808.18 to read as follows:
Sec. 808.18 Settlement by agreement.
(a) An alleged violator may offer to settle an enforcement action
by agreement. The Executive Director may enter into settlement
agreements to resolve an enforcement action. The Commission may, by
Resolution, require certain types of enforcement actions or settlements
to be submitted to the Commission for action or approval.
(b) In the event the violator fails to carry out any of the terms
of the settlement agreement, the Commission or Executive Director may
reinstitute a civil penalty action and any other applicable enforcement
action against the alleged violator.
Dated: June 21, 2017.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2017-13324 Filed 6-28-17; 8:45 am]
BILLING CODE 7040-01-P