Current through Register Vol. 46, No. 12, March 20, 2024
(a) Except for activities relating to site
evaluation or those authorized under section
1806.34 of
this Part, 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 sections
1806.10
-1806.16 of this Part and shall be subject to the applicable standards in
sections
1806.20
-1806.25 of this Part.
(1) Consumptive use of
water. Any consumptive use project described below shall require an application
to be submitted in accordance with section
1806.13
of this Part, and shall be subject to the standards set forth in section
1806.22
of this Part, and, to the extent that it involves a withdrawal from groundwater
or surface water, shall also be subject to the standards set forth in section
1806.23
of this Part. Except to the extent that they involve the diversion of the
waters of the basin, public water supplies shall be exempt from the
requirements of this section regarding consumptive use; provided, however, that
nothing in this section shall be construed to exempt individual consumptive
users connected to any such public water supply from the requirements of this
section. Provided the commission determines that low flow augmentation projects
sponsored by the commission's member states provide sufficient mitigation for
agricultural water use to meet the standards set forth in section
1806.22
of this Part, and except as otherwise provided below, agricultural water use
projects shall not be subject to the requirements of this paragraph.
Notwithstanding the foregoing, an agricultural water use project involving a
diversion of the waters of the basin shall be subject to such requirements
unless the property, or contiguous parcels of property, upon which the
agricultural water use project occurs is located at least partially within the
basin.
(i) Any project initiated on or after
January 23, 1971, involving a consumptive water use of an average of 20,000
gallons per day (gpd) or more in any consecutive 30-day period.
(ii) With respect to projects previously
approved by the commission for consumptive use, any project that will involve
an increase in a consumptive use above that amount which was previously
approved.
(iii) With respect to
projects that existed prior to January 23, 1971, any project that increases its
consumptive use by an average of 20,000 gpd or more in any consecutive 30-day
period above its pre-compact consumptive use.
(iv) Any project, regardless of when
initiated, involving a consumptive use of an average of 20,000 gpd or more in
any 30-day period, and undergoing a change of ownership, unless such project
satisfies the requirements of subdivision (b) or (c) of this section or the
existing commission approval for such project is transferred pursuant to
section
1806.6
of this Part.
(2)
Withdrawals. Any project described below shall require an application to be
submitted in accordance with section
1806.13
of this Part, and shall be subject to the standards set forth in section
1806.23
of this Part. 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 subdivision
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, section
1806.5
of this Part, or 18 CFR part 801. The taking or removal of water by a public
water supplier indirectly through another public water supply system or another
water user's facilities shall constitute a withdrawal hereunder.
(i) Any project initiated on or after the
applicable dates specified in subparagraph (iv) of this paragraph, withdrawing
a consecutive 30-day average of 100,000 gpd or more from a groundwater or
surface water source, or a combination of such sources.
(ii) With respect to projects previously
approved by the commission, any project that increases a withdrawal above that
amount which was previously approved and any project that will add a source or
increase withdrawals from an existing source which did not require approval
prior to January 1, 2007.
(iii) Any
project which involves a withdrawal from a groundwater or surface water source
and which is subject to the requirements of this subdivision regarding
consumptive use.
(iv) With respect
to groundwater projects in existence prior to July 13, 1978, and surface water
projects in existence prior to November 11, 1995, any project that will
increase its withdrawal from any source, or initiate a withdrawal from a new
source, or combination of sources, by a consecutive 30-day average of 100,000
gpd or more, above that maximum consecutive 30-day amount which the project was
withdrawing prior to the said applicable date.
(v) Any project, regardless of when
initiated, involving a withdrawal of a consecutive 30-day average of 100,000
gpd or more, from either groundwater or surface water sources, or in
combination from both, and undergoing a change of ownership, unless such
project satisfies the requirements of subdivision (b) or (c) of this section or
the existing commission approval for such project is transferred pursuant to
section
1806.6
of this Part.
(3)
Diversions. Except with respect to agricultural water use projects not subject
to the requirements of paragraph (1) of this subdivision, the projects
described in subparagraphs (i)-(iv) of this paragraph shall require an
application to be submitted in accordance with section
1806.13
of this Part, and shall be subject to the standards set forth in section
1806.24
of this Part. The project sponsors of out-of-basin diversions shall also comply
with all applicable requirements of this Part relating to consumptive uses and
withdrawals. The projects identified in subparagraphs (v) and (vi) of this
paragraph shall be subject to regulation pursuant to section
1806.22(f)
of this Part.
(i) Any project initiated on or
after January 23, 1971, involving the diversion of water into the basin, or
involving a diversion of water out of the basin of an average of 20,000 gallons
of water per day or more in any consecutive 30-day period.
(ii) With respect to diversions previously
approved by the commission, any project that will increase a diversion above
the amount previously approved.
(iii) With respect to diversions initiated
prior to January 23, 1971, any project that will increase a diversion into the
basin by any amount, or increase the diversion of water out of the basin by an
average of 20,000 gpd or more in any consecutive 30-day period.
(iv) Any project, regardless of when
initiated, involving the diversion of water into the basin or involving a
diversion of an average of 20,000 gallons of water per day or more in any
consecutive 30-day period out of the basin, and undergoing a change of
ownership, unless such project satisfies the requirements of subdivision (b) or
(c) of this section or the commission approval for such project is transferred
pursuant to section
1806.6
of this Part.
(v) The interbasin
diversion of any flowback or production fluids from hydrocarbon development
projects from one drilling pad site to another drilling pad site for use in
hydrofracture stimulation, provided it is handled, transported and stored in
compliance with all standards and requirements of the applicable member
jurisdiction, shall not be subject to separate review and approval as a
diversion under this paragraph if the generating or receiving pad site is
subject to an approval by rule issued pursuant to section
1806.22(f)
of this Part and provided all monitoring and reporting requirements applicable
to such approval are met.
(vi) The
diversion of flowback or production fluids from a hydrocarbon development
project for which an approval by rule has been issued pursuant to section
1806.22(f)
of this Part, to an out-of-basin treatment or disposal facility authorized
under separate governmental approval to accept flowback or production fluids,
shall not be subject to separate review and approval as a diversion under this
paragraph, provided all monitoring and reporting requirements applicable to the
approval by rule are met and it is handled, transported and stored in
compliance with all standards and requirements of the applicable member
jurisdiction.
(4) Any
project on or crossing the boundary between two member states.
(5) Any project in a member state having a
significant effect on water resources in another member state.
(6) Any project which has been or is required
to be included by the commission in its comprehensive plan, or will have a
significant effect upon the comprehensive plan.
(7) Any other project so determined by the
commissioners or executive director pursuant to section
1806.5
of this Part or 18 CFR part 801. Such project sponsors shall be notified in
writing by the executive director.
(8) Any unconventional natural gas
development project in the basin involving a withdrawal, diversion or
consumptive use, regardless of the quantity.
(b) Any project that did not require
commission approval prior to January 1, 2007, and undergoing a change of
ownership, shall be exempt from the requirements of subparagraph (a)(1)(iv),
(2)(v) or (3)(iv) of this section if it satisfies any of the following
categories:
(1) A corporate reorganization of
the following types:
(i) Where property is
transferred to a corporation by one or more corporations solely in exchange for
stock or securities of the transferee corporation, provided that immediately
after the exchange the transferor corporation(s) own 80 percent of the voting
stock and 80 percent of all other stock of the transferee
corporation.
(ii) Where the
corporate reorganization is merely a result of a change of the name, identity,
internal corporate structure or place of organization and does not affect
ownership or control.
(2) Transfer of a project to the transferor's
spouse or one or more lineal descendents, or any spouse of such lineal
descendents, or to a corporation owned or controlled by the transferor, or the
transferor's spouse or lineal descendents, or any spouse of such lineal
descendents, for so long as the combined ownership interest of the transferor,
the transferor's spouse and/or the transferor's lineal descendent(s) and their
spouses, continues to be 51 percent or greater.
(3) Transfer of land used primarily for the
raising of food, fiber or forage crops, trees, flowers, shrubs, turf products,
livestock, or poultry, or for aquaculture, to the extent that, and for so long
as, the project's water use continues to be for such agricultural water use
purposes.
(c) Any
project that did not require commission approval prior to January 1, 2007, and
not otherwise exempt from the requirements of subparagraph (a)(1)(iv), (2)(v)
or (3)(iv) of this section pursuant to subdivision (b) of this section, may be
undertaken by a new project sponsor upon a change of ownership pending action
by the commission on an application submitted by such project sponsor
requesting review and approval of the project, provided such application is
submitted to the commission in accordance with this Part within 90 days of the
date change of ownership occurs and the project features related to the source,
withdrawal, diversion or consumptive use of water, or the nature or quantity of
water withdrawal, diversion or consumptive use associated with the project do
not change pending review of the application. For purposes of this subdivision,
changes in the quantity of water withdrawal, diversion or consumptive use shall
only relate to increases in quantity in excess of the quantity withdrawn,
diverted or consumptively used prior to the change of ownership.