On September 21, 2016, the Susquehanna River Basin Commission (“SRBC”) published a proposed rule that would expand the scope of its current authority over projects that withdraw and use water in Pennsylvania, Maryland, and New York.  The proposal would amend application requirements and SRBC’s review standards for projects, as well as add an entire subpart to its regulations for registration and reporting of “grandfathered” projects (which previously were not regulated).   Water users should expect additional regulation and scrutiny of all projects that involve withdrawals of surface water or groundwater and/or consumptive uses exceeding SRBC thresholds, whether they are new, existing, or (now) grandfathered projects.

Grandfathered Projects.  The most significant proposal is regulation of “grandfathered” projects, which involve water withdrawals or consumptive uses that began before specified dates in the regulations and did not previously require SRBC approval.  SRBC has estimated that there are some-760 grandfathered projects, many of which are not tracked by SRBC or member states, that account for the same amount of water use as all existing regulated consumptive uses in the Basin.  Therefore, SRBC has proposed a mandatory registration-and-reporting program for grandfathered withdrawals and uses, which includes a one-time registration and periodic reporting of withdrawals and uses, along with associated fees.  As support for this rule, SRBC cited to its responsibility to wisely manage water resources in the Basin and the corresponding need to close this “knowledge gap” by comprehensively tracking water usage.

In attempting to close this gap, SRBC has claimed that the registration requirements will not open the door to review-and-approval requirements for grandfathered projects.  In some respects, the registration requirements may be similar to those imposed by the states.  However, this may be only the first step for additional regulation of grandfathered projects, particularly once SRBC gathers and analyzes the registration data.  Indeed, the proposal potentially opens a floodgate of additional regulation. Failure to register within two years of the effective date would render a grandfathered project subject to SRBC’s review-and-approval authority.  Some key informational requirements for this critical registration include:

  • Identification of metering and monitoring for withdrawals and consumptive uses;
  • Reporting five years of quantity data, or other information that may be used to determine quantities withdrawn or consumptively used;
  • Identification of groundwater levels and elevation monitoring methods for groundwater sources;
  • A description of the processes that involve consumptive uses;
  • A request for specific grandfathered quantities; and
  • Any other information SRBC determines necessary.

Accordingly, it is clear that SRBC intends to scrutinize whether and to what extent currently unregulated withdrawals and uses actually qualify for “grandfathering.”  Under the proposal, the SRBC Executive Director must determine the appropriate grandfathered quantity and, in doing so, can examine the accuracy of metering and monitoring.  Increases of any amount over the determined grandfathered quantity would trigger SRBC’s review-and-approval authority.  Although SRBC’s approach is not yet in final form, those potentially affected should already ensure they are accurately metering and documenting withdrawals and usage.  It will also be important for potentially affected water users to understand their processes and monitor consumptive uses from those processes.  For example, as part of the registration, one provision requires SRBC to evaluate current metering and monitoring and authorizes SRBC to require a metering and monitoring plan.  The proposal would also trigger consumptive-use mitigation, such as fees, for certain grandfathered projects.

Other Projects.  New projects may also be affected by the registration requirements described above because SRBC will use the data on grandfathered projects to analyze the impact on waters of the Basin when deciding to approve or deny a new project.  The proposal also would impose several additional requirements to alter SRBC procedures.  It would amend the required contents of applications for new projects and renewals, requiring specific information depending on the type of project, such as an “alternatives analysis.”  The proposal would amend standards for SRBC’s review and approval and authorize SRBC to require monitoring for impacts to water quality and aquatic biological communities.  SRBC has also proposed to revise the provisions for public hearings and enforcement actions.  For example, the proposal expands the Executive Director’s enforcement authority, allowing the Director to issue compliance orders and determine civil penalty amounts, and acknowledges the SRBC’s use of consent orders and agreements and settlements to resolve enforcement actions.  These are just a few of the various amendments proposed by SRBC that may impact water users.

Next Steps. SRBC intends to hold informational webinars on October 11 and October 17 and then conduct four public hearings throughout November and December, with the first meeting scheduled for November 3 in Harrisburg.  Interested stakeholders should understand how the rules may affect them and weigh in through the public-comment process, which is open until January 30, 2017.  Stakeholders seeking more information or advice should contact attorneys and technical specialists who are experienced in these matters.  McNees contacts include: