Current through Register Vol. 46, No. 12, March 20, 2024
(a) The project sponsors of all consumptive
water uses subject to review and approval under section
1806.4,
1806.5
or
1806.6
of this Part shall comply with this section.
(b) Mitigation. All project sponsors whose
consumptive use of water is subject to review and approval under section
1806.4,
1806.5
or
1806.6
of this Part 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:
(1) during low flow periods as may be
designated by the commission for consumptive use mitigation;
(i) reduce withdrawal from the approved
source(s), in an amount equal to the project's total consumptive use, and
withdraw water from alternative surface water storage or aquifers or other
underground storage chambers or facilities approved by the commission, from
which water can be withdrawn for a period of 90 days without impact to surface
water flows;
(ii) release water for
flow augmentation, in an amount equal to the project's total consumptive use,
from surface water storage or aquifers, or other underground storage chambers
or facilities approved by the commission, from which water can be withdrawn for
a period of 90 days without impact to surface water flows;
(iii) discontinue the project's consumptive
use, except that reduction of project sponsor's consumptive use to less than
20,000 gpd during periods of low flow shall not constitute
discontinuance;
(2) use,
as a source of consumptive use water, surface storage that is subject to
maintenance of a conservation release acceptable to the commission. In any case
of failure to provide the specified conservation release, such project shall
provide mitigation in accordance with paragraph (3) of this subdivision, for
the calendar year in which such failure occurs, and the commission will
reevaluate the continued acceptability of the conservation release;
(3) provide monetary payment to the
commission, for annual consumptive use, in an amount and manner prescribed by
the commission;
(4) implement other
alternatives approved by the commission.
(c) Determination of manner of mitigation.
The commission will, in its sole discretion, determine the acceptable manner of
mitigation to be provided by project sponsors whose consumptive use of water is
subject to review and approval. Such a determination will be made after
considering the project's location, source characteristics, anticipated amount
of consumptive use, proposed method of mitigation and their effects on the
purposes set forth in section
1806.2 of
this Part, and any other pertinent factors. The commission may modify, as
appropriate, the manner of mitigation, including the magnitude and timing of
any mitigating releases, required in a project approval.
(d) Quality of water released for mitigation.
The physical, chemical and biological quality of water released for mitigation
shall at all times meet the quality required for the purposes listed in section
1806.2 of
this Part, as applicable.
(e)
Approval by rule for consumptive uses.
(1)
Except with respect to projects involving hydrocarbon development subject to
the provisions of subdivision (f) of this section, any project whose sole
source of water for consumptive use is a public water supply, may be approved
by the executive director under this subdivision in accordance with the
following, unless the executive director determines that the project cannot be
adequately regulated under this approval by rule.
(i) Notification of intent. No fewer than 90
days prior to the construction or implementation of a project or increase above
a previously approved quantity of consumptive use, the project sponsor shall:
submit a notice of intent (NOI) on forms prescribed by the commission, and the
applicable application fee, along with any required attachments.
(ii) Within 10 days after submittal of an NOI
under subparagraph (i) of this paragraph, the project sponsor shall satisfy the
notice requirements set forth in section
1806.15 of
this Part.
(2) Metering,
daily use monitoring and quarterly reporting. The project sponsor shall comply
with metering, daily use monitoring and quarterly reporting as specified in
section
1806.30 of
this Part.
(3) Standard conditions.
The standard conditions set forth in section
1806.21 of this
Part above shall apply to projects approved by rule.
(4) Mitigation. The project sponsor shall
comply with mitigation in accordance with paragraph (b)(2) or (3) of this
section.
(5) 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 subdivision if the project
sponsor fails to obtain or maintain such approvals.
(6) The executive director may grant, deny,
suspend, rescind, 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.
(7) 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) Approval by rule for consumptive use
related to unconventional natural gas and other hydrocarbon development.
(1) Any unconventional natural gas
development project, or any hydrocarbon development project subject to review
and approval under section
1806.4,
1806.5,
or
1806.6
of this Part, shall be subject to review and approval by the executive director
under this subdivision regardless of the source or sources of water being used
consumptively.
(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) Within 10 days after submittal of an NOI
under paragraph (2) of this subdivision, the project sponsor shall satisfy the
notice requirements set forth in section
1806.15 of
this Part.
(4) The project sponsor
shall comply with metering, daily use monitoring and quarterly reporting as
specified in section
1806.30 of
this Part, or as otherwise required by the approval by rule. Daily use
monitoring shall include amounts delivered or withdrawn per source, per day,
and amounts used per gas well, per day, for well drilling, hydrofracture
stimulation, hydrostatic testing, and dust control. The foregoing shall apply
to all water, including stimulation additives, flowback, drilling fluids,
formation fluids and production fluids, utilized by the project. The project
sponsor shall also submit a post-hydrofracture report in a form and manner as
prescribed by the commission.
(5)
The project sponsor shall comply with the mitigation requirements set forth in
subdivision (b) of this section.
(6) Any flowback or production fluids
utilized by the project sponsor for hydrofracture stimulation undertaken at the
project shall be separately accounted for, but shall not be included in the
daily consumptive use amount calculated for the project, or be subject to the
mitigation requirements of subdivision (b) of this section.
(7) 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
executive director reserves the right to modify, suspend or revoke any approval
under this subdivision of this section if the project sponsor fails to obtain
or maintain such approvals.
(8) The
project sponsor shall certify to the commission that all flowback and
production fluids have been re-used or treated and disposed of in accordance
with applicable state and Federal law.
(9) The executive director may grant, deny,
suspend, rescind, 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 section
1806.4(a)
of this Part. Any sources of water approved pursuant to this section shall be
further subject to any approval or authorization required by the member
jurisdiction.
(10) An approval by
rule shall be effective upon written notification from the executive director
to the project sponsor and shall expire 15 years from the date of such
notification.
(11) In addition to
water sources approved for use by the project sponsor pursuant to section
1806.4
of this Part or this section, for unconventional natural gas development or
hydrocarbon development, whichever is applicable, a project sponsor issued an
approval by rule pursuant to paragraph (9) of this subdivision may utilize any
of the following water sources at the drilling pad site, subject to such
monitoring and reporting requirements as the commission may prescribe:
(i) Tophole water encountered during the
drilling process, provided it is used only for drilling or hydrofracture
stimulation.
(ii) Precipitation or
stormwater collected on the drilling pad site, provided it is used only for
drilling or hydrofracture stimulation.
(iii) Drilling fluids, formation fluids,
flowback or production fluids obtained from a drilling pad site, production
well site or hydrocarbon water storage facility, provided it is used only for
hydrofracture stimulation, and is handled, transported and stored in compliance
with all standards and requirements of the applicable member
jurisdiction.
(iv) Water obtained
from a hydrocarbon water storage facility associated with an approval issued by
the commission pursuant to section
1806.4(a)
of this Part or by the executive director pursuant to this section, provided it
is used only for the purposes authorized therein, and in compliance with all
standards and requirements of the applicable member jurisdiction.
(12) A project sponsor issued an
approval by rule pursuant to paragraph (9) of this subdivision may utilize a
source of water approved by the commission pursuant to section
1806.4(a)
of this Part, or by the executive director pursuant to paragraph (14) of this
subdivision, and issued to persons other than the project sponsor, provided any
such source is approved for use in unconventional natural gas development, or
hydrocarbon development, whichever is applicable, the project sponsor has an
agreement for its use, and at least 10 days prior to use, the project sponsor
registers such source with the commission on a form and in the manner
prescribed by the commission.
(13)
A project sponsor issued an approval by rule pursuant to paragraph (9) of this
subdivision may also utilize other sources of water, including but not limited
to, public water supply or wastewater discharge not otherwise associated with
an approval issued by the commission pursuant to section
1806.4(a)
of this Part or an approval by rule issued pursuant to paragraph (9) of this
subdivision, provided such sources are first approved by the executive
director. Any request for approval shall be submitted on a form and in the
manner prescribed by the commission, shall satisfy the notice requirements set
forth in section
1806.15 of
this Part, and shall be subject to review pursuant to the standards set forth
in sections
1806.20
-1806.25 of this Part.
(14) A
project sponsor issued an approval by rule pursuant to paragraph (9) of this
subdivision may utilize water obtained from a hydrocarbon water storage
facility that is not otherwise associated with an approval issued by the
commission pursuant to section
1806.4(a)
of this Part, or an approval by rule issued pursuant to paragraph (9) of this
subdivision, provided such sources are first approved by the executive director
and are constructed and maintained in compliance with all standards and
requirements of the applicable member jurisdiction. The owner or operator of
any such facility shall submit a request for approval on a form and in the
manner prescribed by the commission, shall satisfy the notice requirements set
forth in section
1806.15 of
this Part, and shall be subject to review pursuant to the standards set forth
in sections
1806.20
-1806.25 of this Part.
(15) The
project sponsor shall provide a copy of any registration or source approval
issued pursuant to this section to the appropriate agency of the applicable
member jurisdiction. The project sponsor shall record on a daily basis, and
report quarterly on a form and in a manner prescribed by the commission, the
quantity of water obtained from any source registered or approved hereunder.
Any source approval issued hereunder shall also be subject to such monitoring
and reporting requirements as may be contained in such approval or otherwise
required by this Part.