CFR Subpart B

CFR Subpart B
in effect

18 C.F.R. § 806.10 Purpose of this subpart.

The purpose of this subpart is to set forth procedures governing applications required by §§ 806.4, 806.5, 806.6 and 18 CFR part 801.

18 C.F.R. § 806.11 Preliminary consultations.

(a) Any project sponsor of a project that is or may be subject to the Commission's jurisdiction is encouraged, prior to making application for Commission review, to request a preliminary consultation with the Commission staff for an informal discussion of preliminary plans for the proposed project. To facilitate preliminary consultations, it is suggested that the project sponsor provide a general description of the proposed project, a map showing its location and, to the extent available, data concerning dimensions of any proposed structures, anticipated water needs, and the environmental impacts. (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.

18 C.F.R. § 806.12 Hydrogeologic evaluation.

Evaluation of groundwater withdrawal projects requires a hydrogeologic evaluation, which may be an aquifer test in accordance with an approved plan or an alternative hydrogeologic evaluation in conformance with this section. (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 an aquifer test. (b) Unless an alternative hydrogeologic evaluation method is approved, the project sponsor shall prepare an aquifer test plan for prior review and approval by Commission staff before testing is undertaken. Such plan shall include a groundwater availability analysis to determine the availability of water during a 1-in-10-year recurrence interval. (c) Unless otherwise specified, approval of a test plan is valid for two years from the date of approval. (d) Approval of a test plan shall not be construed to limit the authority of the Commission to require additional testing or monitoring. (e) The project sponsor may be required, at its expense, to provide temporary water supply if an aquifer test results in interference with an existing water use. (f) Review of submittals under this section may be terminated by the Commission in accordance with the procedures set forth in § 806.16. (g) This section does not apply to withdrawals related to mine dewatering, water resources remediation or AMD facilities, provided the activity is governed by another regulatory agency. (h) Sources undergoing renewal that can provide an interpretative hydrogeologic report that documents the results of a Commission approved aquifer test or documentation of an approved prior waiver by the Commission may meet the requirements of this section for that previously approved groundwater source. (i) In lieu of completing a Commission-approved aquifer test, the project sponsor may submit an Alternative Hydrogeologic Evaluation (AHE) that provides supporting information equivalent to that which would be obtained from completing an approved aquifer test under paragraph (a) of this section. This supporting information includes, but is not limited to, prior aquifer testing data, the withdrawal setting and location, existing site specific operational data, and prior Commission approved waivers of aquifer testing requirements. Commission staff may approve an AHE for a project or require completion of a Commission approved aquifer test in accordance with paragraph (a) of this section. (j) This section does not apply to withdrawals from a small capacity source, unless otherwise determined by the Executive Director.

18 C.F.R. § 806.13 Submission of application.

Sponsors of projects subject to review and approval of the Commission under § 806.4, § 806.5 or § 806.6, or project sponsors seeking renewal of an existing approval of the Commission, shall submit an application and applicable fee to the Commission, in accordance with this subpart.

18 C.F.R. § 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, 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, 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 description of all sources, consumptive uses and diversions related to the project. (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 water with exceptional water quality, or as required by the Commission. (2) Groundwater. (i) With the exception other projects which are addressed in paragraph (b)(6) of this section, the project sponsor shall demonstrate that requirements of § 806.12 have been met by providing one of the following: (A) An interpretive report that includes the results of a Commission approved aquifer test and an updated groundwater availability estimate if changed from the aquifer test plan, (B) An approved AHE, (C) A prior determination by the Commission staff under § 806.12(h) that the intent and requirements of § 806.12 have been met along with an updated groundwater availability estimate. (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 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, 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, description of all sources, consumptive uses and diversions related to the project 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 that conforms to § 806.30. (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 § 806.15. (10) Changes to the facility design. (11) Any proposed changes to the previously authorized purpose. (d) Additional information is required for the following applications for renewal of expiring approved projects. (1) Surface water. (i) Description and as-built of intake structure. (ii) For renewals seeking 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) The project sponsor shall demonstrate that requirements of § 806.12 have been met by providing one of the following: (A) Provide an interpretive report that includes the results of a Commission approved aquifer test and an updated GW availability estimate if changed from the aquifer test plan; (B) An approved AHE; or (C) A prior determination by the Commission staff under § 806.12(h) that the intent and requirements of § 806.12 have been met. (ii) An interpretative report providing analysis and comparison of current and historic water withdrawal and groundwater elevation data with previously completed materials to demonstrate satisfaction of § 806.12, which may include a hydrogeologic report from previous aquifer testing, an approved AHE or prior determination of waiver of aquifer testing. (iii) Current groundwater availability analysis assessing the availability of water during a 1-in-10 year drought 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) Alternatives analysis as required by the Commission. (3) Consumptive use. (i) Consumptive use calculations. (ii) Mitigation plan, including method of consumptive use mitigation. (4) Into basin diversion. (i) Provide the necessary information to demonstrate that the project will continue to meet the standards in § 806.24(c). (ii) Identification of the source and current water quality characteristics of the water to be diverted. (5) Out of basin diversion. (i) Provide the necessary information to demonstrate that the project will continue to meet the standards in § 806.24(b). (ii) [Reserved] (6) Other projects. Other projects, including without limitation, mine dewatering, water resources remediation projects, and AMD facilities that qualify as a withdrawal. (i) In lieu of a hydrogeologic evaluation, a 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. (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.

18 C.F.R. § 806.15 Notice of application.

(a) Except with respect to paragraphs (e), (f), and (g) 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 (d) 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 be in a form and manner as prescribed by the Commission. (b) For withdrawal applications submitted pursuant to § 806.4(a)(2) for new projects, major modifications, and renewals requesting an increase, the project sponsor shall also provide the notice required under paragraph (a) of this section to each property owner listed on the tax assessment rolls of the county in which such property is located and identified as follows: (1) For groundwater withdrawal applications, the owner of any property that is located within a one-quarter mile radius of the proposed withdrawal location. (2) For surface water withdrawal applications, the owner of any property that is riparian or littoral to the body of water from which the proposed withdrawal will be taken and is within a one-half mile radius of the proposed withdrawal location. (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. (c) For projects involving a diversion of water out of the basin, the project sponsor shall also publish a notice of the submission of its application at least once in a newspaper of general circulation serving the area outside the basin where the project proposing to use the diverted water is located. For projects involving a diversion of water into the basin, the project sponsor shall also publish a notice of the submission of its application at least once in a newspaper of general circulation serving the area outside the basin where the withdrawal of water proposed for diversion is located. (d) 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, counties and appropriate county agencies required under 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. 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. (e) For Notices of Intent (NOI) seeking coverage under a general permit, the project sponsor shall provide notice of the NOI to the appropriate agency of the member State and each municipality and county and appropriate county agencies in which the project is located and any additional notice identified in the general permit. (f) For applications for minor modifications and approvals by rule under § 806.22(e), the project sponsor shall provide notice of the application to the appropriate agency of the member State and each municipality and county and appropriate county agencies in the which the project is located. (g) For NOIs seeking an approval pursuant to § 806.22(f), the project sponsor shall provide notice of the application to the appropriate agency of the member State, each municipality, county and appropriate county agencies, and the owner of the property on or in which the drilling pad site is located. For requests for approval submitted under § 806.22(f)(13), the project sponsor shall provide notice of the application to the appropriate agency of the member State, each municipality, county and appropriate county agencies in which the public water supply is located.

18 C.F.R. § 806.16 Completeness of application.

(a) The Commission's staff shall review the application, and if necessary, request the project sponsor to provide any additional information that is deemed pertinent for proper evaluation of the project. (b) An application deemed administratively incomplete will be returned to the project sponsor, who shall have 30 days to cure the administrative deficiencies. An application deemed technically deficient may be returned to the project sponsor, who shall have a period of time prescribed by Commission staff to cure the technical deficiencies. Failure to cure either administrative or technical deficiencies within the prescribed time may result in termination of the application process and forfeiture of any fees submitted. (c) The project sponsor has a duty to provide information reasonably necessary for the Commission's review of the application. If the project sponsor fails to respond to the Commission's request for additional information, the Commission may terminate the application process, close the file and so notify the project sponsor. The project sponsor may reapply without prejudice by submitting a new application and fee.

18 C.F.R. § 806.17 General permits.

(a) Coverage and purpose. The Commission may issue a general permit, in lieu of issuing individual approvals, for a specifically described category of diversions, water withdrawals and consumptive uses that: (1) Involve the same or substantially similar types of operations or activities; (2) Require the same limitations or operating conditions, or both; (3) Require the same or similar monitoring and reporting; and (4) Will result in minimal adverse impacts consistent with §§ 806.21 through 806.24. (b) Procedure for issuance. (1) At least 30 days prior to the issuance of a general permit, the Commission shall publish notice in the Federal Register and the member jurisdiction administrative bulletins of the intent to issue a general permit. (2) At least 30 days shall be provided for interested members of the public and Federal, State and local agencies to provide written comments on a proposed general permit. (3) The Commission or Executive Director may, in its discretion, hold a public hearing on a proposed general permit, taking into account the level of public interest and likelihood of controversy. (4) The issuance of a general permit adopted by the Commission will be published in the Federal Register and the member jurisdiction administrative bulletins. This notice shall set forth the effective date of the general permit. (c) Administration of general permits. General permits may be issued, amended, suspended, revoked, reissued or terminated under this section. (1) Any general permit issued under this section shall set forth the applicability of the permit and the conditions that apply to any diversion, withdrawal or consumptive use authorized by such general permit. (2) The Commission may fix a term to any general permit issued. (3) A project sponsor shall obtain permission to divert, withdraw or consumptively use water in accordance with a general permit by filing a Notice of Intent (NOI) with the Commission, in a form and manner determined by the Commission. (4) Approval of coverage under a general permit shall be determined by the Executive Director or by any other manner that the Commission shall establish for any general permit. (5) The Commission may set a fee for NOIs to any general permit. (6) A project sponsor shall provide notice for NOIs in accordance with § 806.15(h) and any additional notice requirements that the Commission may adopt for any general permit. (7) The requirements of § 806.16 apply to the review of NOIs to any general permit. (8) Upon reissuance or amendment of a general permit, all project sponsors permitted to divert, withdraw or consumptively use water in accordance with the previous general permit shall be permitted to continue to operate with the renewed or modified general permit unless otherwise notified by the Commission. (9) Notice of receipt of NOIs shall be published on the Commission's Web site and in any other manner that the Commission shall establish for any general permit. (d) Denial of coverage. The Executive Director will deny or revoke coverage under a general permit when one or more of the following conditions exist: (1) The project or project sponsor does not or can no longer meet the criteria for coverage under a general permit. (2) The diversion, withdrawal or consumptive use, individually or in combination with other similar Commission regulated activities, is causing or has the potential to cause adverse impacts to water resources or competing water users. (3) The project does not comport with § 806.21(a) or (b). (4) The project includes other diversions, withdrawals or consumptive uses that require an individual approval and the issuance of both an individual approval and a general permit for the project would constitute an undue administrative burden on the Commission. (5) The Executive Director determines that a project cannot be effectively regulated under a general permit and is more effectively regulated under an individual approval. (e) Requiring an individual approval. If coverage is denied or revoked under paragraph (d) of this section, the project sponsor shall be notified in writing. The notice will include a brief statement for the reasons for the decision. If coverage under a general permit was previously granted, the notice will also include a deadline for submission of an application for an individual approval. Timely submission of a complete application will result in continuation of coverage of the applicable withdrawal, consumptive use or diversion under the general permit, until the Commission takes final action on the pending individual approval application. (f) Action of the Commission. Action by the Executive Director denying or revoking coverage under a general permit under paragraph (d) of this section, or requiring an individual approval under paragraph (e) of this section, is not a final action of the Commission until the project sponsor submits and the Commission takes final action on an individual approval application.

18 C.F.R. § 806.18 Approval modifications.

(a) General. A project sponsor shall submit an application for modification of a current approval prior to making a change in the design, operational plans, or use as presented in the application upon which the approval was originally issued, and that will affect the terms and conditions of the current approval. (b) Applications for modification. A project sponsor may apply for a modification of a current approval by submitting an application for modification to the Commission. (c) Minor modifications. The following are minor modifications: (1) Correction of typographical or other errors; (2) Changes to monitoring or metering conditions; (3) Addition, amendment or removal of sources of water for consumptive use or project descriptions; (4) Changes to the authorized water uses; (5) Changes to conditions setting a schedule for developing, implementing, and/or reporting on monitoring, data collection and analyses; (6) Changes to the design and minor changes to the location of intakes; (7) Increases to total system limits that were established based on the projected demand of the project; and (8) Modifications of extraction well network used for groundwater remediation systems. (9) Adjustments to a term of an approval to align the approval with a member jurisdiction approval or another docket approval by the Commission. (10) Changes to the method of consumptive use mitigation to payment of the mitigation fee, providing for discontinuance, use of storage or an adequate conservation release in accordance with a previous Commission determination. (11) Addition of stormwater as a source of consumptive use, including an increase to the total consumptive use related to the stormwater use. (12) Extension of the date of commencement of a withdrawal, diversion or consumptive use established under § 806.31(b). (d) Major modifications. Major modifications are changes not considered to be minor modifications. Major modifications may include, but are not limited to: (1) Increases in the quantity of water withdrawals, consumptive uses or diversions; (2) Increases to peak day consumptive water use; (3) Increases to the instantaneous withdrawal rate or changes from a single withdrawal rate to a varied withdrawal rate; (4) Changes affecting passby flow requirements; and (5) Changes that have the potential for adverse impacts to water resources or competing water users. (e) Notice and approval. (1) Applications for modifications are subject to the notice requirements of § 806.15. (2) The Commission or Executive Director may approve, approve with conditions or deny an application for minor modification, or direct that an application for major modification be made. (3) The Commission may approve, approve with conditions or deny an application for major modification.

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