The Susquehanna River Basin Commission (“SRBC”) approved a final rulemaking at its business meeting on June 16, 2017, that will regulate “grandfathered” water withdrawals and consumptive uses as we explained in our analysis of the proposal last Fall.  This new regulation will be effective January 2018.  While the SRBC revised the proposed rule in response to public comments, the thrust of the rule will remain the same:  grandfathered withdrawals and uses will be required to register with the SRBC and to be metered.  The registration requirements for grandfathered withdrawals and uses will result in closer agency scrutiny.  They could cause loss of grandfathered status, triggering full SRBC review and approval for failure to timely register or increases in quantities withdrawn or used.

Entities with grandfathered sources and uses should carefully analyze this final rulemaking and contact McNees for additional information.

The new regulation is important for currently regulated and future projects.  There are changes to general application provisions and procedures that will be effective sooner than the grandfathering provisions (upon the rulemaking’s publication in the Federal Register) and could more broadly impact projects.

Other aspects of the proposed rulemaking last Fall, which would have imposed mitigation requirements for consumptive uses beyond the typical payment of a consumptive use mitigation fee, were abandoned in the final rule.  The SRBC removed proposed provisions relating to mitigation plans from the final regulation, including provisions on “water critical areas.”  The SRBC also put its draft Consumptive Use Mitigation Policy on hold, indicating that it will further consider the public comments on these issues and go back to the drawing board in the future.

We will know more about the final rulemaking when the SRBC posts the text and a comment/response document on its website in the coming weeks.  Until the grandfathering rule becomes effective in January 2018, the SRBC will be working on the forms and additional guidance for registration.  Once the grandfathering rule is effective, registrations can be made for six months without any application fee.

McNees contacts who can provide assistance include: