Comprehensive Plan and Special Regulations With Respect to High Volume Hydraulic Fracturing; Rules of Practice and Procedure Regarding Project Review Classifications and Fees

Published date21 April 2021
Citation86 FR 20628
Record Number2021-07998
SectionRules and Regulations
CourtDelaware River Basin Commission
20628
Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Rules and Regulations
DELAWARE RIVER BASIN
COMMISSION
18 CFR Parts 401 and 440
Comprehensive Plan and Special
Regulations With Respect to High
Volume Hydraulic Fracturing; Rules of
Practice and Procedure Regarding
Project Review Classifications and
Fees
AGENCY
: Delaware River Basin
Commission.
ACTION
: Final rule.
SUMMARY
: The Delaware River Basin
Commission is amending its
Comprehensive Plan and adopting new
regulations to prohibit high volume
hydraulic fracturing in hydrocarbon-
bearing rock formations within the
Delaware River Basin. The Commission
is simultaneously adopting unrelated
amendments to its rules concerning the
classification of projects for review
under Section 3.8 of the Compact and
regulatory program fees.
DATES
: This final rule is effective May
21, 2021.
FOR FURTHER INFORMATION CONTACT
:
Pamela M. Bush, Esquire, 609–477–
7203, pam.bush@drbc.gov.
SUPPLEMENTARY INFORMATION
:
Background
The Delaware River Basin
Commission (‘‘DRBC’’ or
‘‘Commission’’) is a Federal-interstate
compact agency charged with managing
the water resources of the Delaware
River Basin on a regional basis without
regard to political boundaries. Its
members are the governors of the four
basin states—Delaware, New Jersey,
New York and Pennsylvania—and the
North Atlantic Division Commander of
the U.S. Army Corps of Engineers,
representing the Federal Government.
When the potential for developing
natural gas from tight shale formations
within the Basin using high volume
hydraulic fracturing (‘‘HVHF’’) and
horizontal drilling techniques and the
risks to water resources posed by such
activities became known to the
Commission, Commission staff
undertook a scientific, technical,
regulatory, and policy analysis to
determine the appropriate response in
light of the Commission’s statutory
mission and Comprehensive Plan.
An important milestone occurred on
September 13, 2017, when the DRBC
Commissioners by a Resolution for the
Minutes directed the Executive Director
to prepare and publish for public
comment a revised set of draft
regulations, to include, among other
things, ‘‘prohibitions relating to the
production of natural gas utilizing
horizontal drilling and hydraulic
fracturing within the basin.’’ In
accordance with the Commissioners’
directive, the Commission proposed
amendments to its Comprehensive Plan
and to its Special Regulations at 18 CFR
part 440, including a prohibition on
HVHF within the Basin. The
Commission simultaneously proposed
amendments to its Administrative
Manual—Rules of Practice and
Procedure, 18 CFR part 401, concerning
the classification of projects for review
under Section 3.8 of the Compact
(§ 401.35) and regulatory program fees
(§ 401.43). See 83 FR 1586, January 12,
2018. Also see, 21 DE Reg. 526, January
1, 2018; 50 N.J.R. 717, February 5, 2018;
NYS Register, January 3, 2018 p. 5; and
48 Pa. B. 255, January 13, 2018. Some
of the proposed amendments to part 401
were related to the new part 440 and
others were not; however, only the
changes unrelated to part 440 are being
adopted as final rules.
The changes unrelated to HVHF do
not substantively alter Commission
requirements or fees, but better align the
rules with the Commission’s practices,
eliminate unnecessary language, clarify
language that has been misconstrued,
and in instances replace the discretion
of the Executive Director with that of
the Commission. The changes to project
review classifications: (1) Retain
Commission review of alterations to
wetlands of less than 25 acres where a
state or a federal level review and
permit system is not in effect, while
eliminating additional triggers for such
review; (2) remove the provision for
review of regional wastewater treatment
plans developed pursuant to the Federal
Water Pollution Control Act because the
basin states have effective programs for
the transparent development and
implementation of such plans; (3)
replace the discretion of the Executive
Director with that of the Commission to
require review under Section 3.8 of the
Compact of any project having a
potential substantial water quality
impact on waters classified as Special
Protection Waters; and (4) clarify that
the Commission as a whole, not merely
any single agency of a signatory party,
may determine that a project in an
excluded classification is required to be
submitted for review under Section 3.8
of the Compact. The changes to
regulatory program fees replace the term
‘‘docket application fee’’ with the more
accurate term ‘‘application fee,’’ because
project review does not always involve
a ‘‘docket.’’
Extensive opportunity for public
input on the proposed rules was
provided during the public comment
period that took place from November
30, 2017 to March 30, 2018. In addition
to accepting written comments, the
Commission accepted oral comment at
six public hearings, one of which was
conducted through an operator-assisted
toll-free teleconference to avoid the
need for travel to a hearing location.
During the comment period, the
Commission received a total of 8,903
comment submissions (8,680 in writing
and 223 at public hearings). In many
cases, a single comment submission
included numerous detailed comments.
A Comment and Response Document
was prepared and adopted by the
Commission to address the comments
received from the public.
Together with the other materials
gathered during the development of its
regulation, the Commission reviewed
the extensive public comments,
including consultant reports, scientific
literature and other statements and
materials submitted, and examined the
experience of other jurisdictions with
HVHF. Based upon its review, the
Commission by Resolution No. 2021–01
on February 25, 2021, found and
determined that:
1. As the scientific and technical
literature and the reports, studies,
findings and conclusions of other
government agencies reviewed by the
Commission have documented, and as
the more than a decade of experience
with high volume hydraulic fracturing
in regions outside the Delaware River
Basin have evidenced, despite the
dissemination of industry best practices
and government regulation, high
volume hydraulic fracturing and related
activities have adversely impacted
surface water and groundwater
resources, including sources of drinking
water, and have harmed aquatic life in
some regions where these activities have
been performed.
2. The region of the Delaware River
Basin underlain by shale formations is
comprised largely of rural areas
dependent upon groundwater resources;
sensitive headwater areas considered to
have high water resource values; and
areas draining to DRBC Special
Protection Waters.
3. The geology of the region in which
shale formations potentially containing
natural gas are located in the Basin is
characterized by extensive geologic
faults and fractures providing
preferential pathways for migration of
fluids (including gases).
4. If commercially recoverable natural
gas is present in the Delaware River
Basin and if HVHF were to proceed in
the Basin, then:
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a. Spills and releases of hydraulic
fracturing chemicals, fluids and
wastewater would adversely impact
surface water and groundwater, and
losses of well integrity would result in
subsurface fluid (including gas)
migration, impairing drinking water
resources, and other uses established in
the Comprehensive Plan.
b. The fluids released or migrating
would contain pollutants, including
salts, metals, radioactive materials,
organic compounds, endocrine-
disrupting and toxic chemicals, and
chemicals for which toxicity has not
been determined, impairing the water
uses protected by the Comprehensive
Plan.
c. HVHF activities and their impacts
would be dispersed over and adversely
affect thousands of acres of sensitive
water resource features, including,
among others, forested groundwater
infiltration areas, other groundwater
recharge locations, and drainage areas to
Special Protection Waters, where few
existing roads are designed to safely
carry the heavy industrial traffic
required to support HVHF, prevent
dangerous spills or provide access to
remediate spills that occur.
5. For these reasons and other
grounds described in the administrative
record for this rulemaking:
a. High-volume hydraulic fracturing
and related activities pose significant,
immediate and long-term risks to the
development, conservation, utilization,
management, and preservation of the
water resources of the Delaware River
Basin and to Special Protection Waters
of the Basin, considered by the
Commission to have exceptionally high
scenic, recreational, ecological, and/or
water supply values.
b. Controlling future pollution by
prohibiting high volume hydraulic
fracturing in the Basin is required to
effectuate the Commission’s
Comprehensive Plan, avoid injury to the
waters of the Basin as contemplated by
the Comprehensive Plan and protect the
public health and preserve the waters of
the Basin for uses in accordance with
the Comprehensive Plan.
The Commission’s Comment and
Response Document responds to
comments regarding the risks to water
resources posed by HVHF, and the
potential and observed adverse impacts
of HVHF and related activities on water
resources. In addition, it addresses
comments concerning: The
Commission’s authority; the intersection
of Commission, state and Federal rules;
the proposed rule text; basis and
background documents; economic
impacts; the relationship of HVHF and
related activities to DRBC’s
Comprehensive Plan, rules and policies;
public health; chemical disclosures;
climate change; renewable energy;
policies and reports on the
Susquehanna River Basin; the public
input process; compliance and
enforcement; constitutional challenges
and other matters.
Changes From the Draft Rule
Upon adopting its final rules
concerning HVHF, the Commission
withdrew proposed § 440.4—
Exportation of water for hydraulic
fracturing of oil and natural gas wells
and § 440.5—Produced Water (and
importation of wastewater), and revised
§ 440.2—Definitions to eliminate terms
associated solely with the two deleted
sections. Within part 401, comprising
the Commission’s Rules of Practice and
Procedure, proposed amendments to
§ 401.35—Classification of Projects for
Review concerning the importation and
exportation of water and wastewater
into and from the Basin were
withdrawn. Also, within part 401,
proposed amendments to § 401.43—
Regulatory Program Fees related to
wastewater treatability studies were
withdrawn. The final rules were revised
to eliminate all references to the deleted
sections, and public comments specific
to these sections are not addressed in
the Commission’s Comment and
Response document. The topics of water
exportation and wastewater importation
will be addressed as appropriate
through one or more separate
Commission actions.
The Comprehensive Plan
amendments and final rules replace the
Executive Director Determinations of
May 19, 2009, June 14, 2010 and July
23, 2010. The Resolution for the
Minutes of May 5, 2010, which
postponed the Commission’s
consideration of well pad projects until
the adoption of final rules, expires by its
own terms.
Additional Materials
Additional materials can be found on
the Commission’s website,
www.drbc.net, at https://
www.state.nj.us/drbc/about/regulations/
final-rule_hvhf.html. These include
links to Resolution No. 2021–01 of
February 25, 2021 adopting the final
rule; the Commission’s Comment and
Response Document; a mark-up
comparing the final to the proposed rule
text for 18 CFR part 440; and mark-ups
comparing the amended to the existing
rule text for 18 CFR 401.35 and 401.43.
The Commission’s notice of proposed
rulemaking, proposed rule text, written
comments received, and transcripts of
public hearings can be found on the
Commission’s website at https://
www.nj.gov/drbc/meetings/proposed/
notice_hydraulic-fracturing.html.
A summary of Commission actions
with respect to hydraulic fracturing for
oil and gas extraction prior to the
Commission’s September 13, 2017
directive is available at: https://
www.nj.gov/drbc/programs/natural/
archives.html.
List of Subjects
18 CFR Part 401
Administrative practice and
procedure, Fees, Project review, Water
pollution control, Water resources.
18 CFR Part 440
Natural gas, Water pollution control,
Water resources.
For the reasons set forth in the
preamble, the Delaware River Basin
Commission amends 18 CFR chapter III
as follows:
PART 401—RULES OF PRACTICE AND
PROCEDURE
1. The authority citation for part 401
continues to read as follows:
Authority: Delaware River Basin Compact
(75 Stat. 688), unless otherwise noted.
Subpart C—Project Review Under
Section 3.8 of the Compact
2. Amend § 401.35 as follows:
a. Revise paragraphs (a) introductory
text, (a)(2) and (15), and (b)(14) through
(17);
b. Remove paragraph (b)(18);
c. Revise paragraph (c);
d. Remove paragraph (d).
The revisions read as follows:
§ 401.35 Classification of projects for
review under section 3.8 of the Compact.
(a) Except as the Commission may
specially direct by notice to the project
owner or sponsor, a project in any of the
following classifications will be deemed
not to have a substantial effect on the
water resources of the Basin and is not
required to be submitted under Section
3.8 of the Compact:
* * * * *
(2) A withdrawal from ground water
when the daily average gross
withdrawal during any 30 consecutive
day period does not exceed 100,000
gallons;
* * * * *
(15) Draining, filling, or otherwise
altering marshes or wetlands when the
area affected is less than 25 acres;
provided, however, that areas less than
25 acres shall be subject to Commission
review and action where neither a state
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1
Consumer Price Index—U/Series ID:
CUURA102SA0/Not Seasonally Adjusted/Area:
Philadelphia-Wilmington-Atlantic City, PA–NJ–DE–
MD/Item: All items/Base Period: 1982–84=100.
nor a Federal level review and permit
system is in effect;
* * * * *
(b) * * *
(14) Landfills and solid waste
disposal facilities affecting the water
resources of the Basin;
(15) State and local standards of flood
plain regulation;
(16) Electric generating or
cogenerating facilities designed to
consumptively use in excess of 100,000
gallons per day of water during any 30-
day period; and
(17) Any other project that the
Commission may specially direct by
notice to the project sponsor or land
owner as having a potential substantial
water quality impact on waters
classified as Special Protection Waters.
(c) Regardless of whether expressly
excluded from review by paragraph (a)
of this section, any project or class of
projects that in the view of the
Commission could have a substantial
effect on the water resources of the
basin may, upon special notice to the
project sponsor or landowner, be subject
to the requirement for review under
section 3.8 of the Compact.
3. Amend § 401.43 as follows:
a. Revise paragraphs (b)(1)
introductory text, (b)(1)(iii) introductory
text, (b)(2)(i), (b)(4)(iii), and (c); and
b. In paragraph (e), in table 1, revise
the table heading and the heading for
the middle column.
The revisions read as follows:
§ 401.43 Regulatory program fees.
* * * * *
(b) * * *
(1) Application fee. Except as set forth
in paragraph (b)(1)(iii) of this section,
the application fee shall apply to:
* * * * *
(iii) Exemptions. The application fee
shall not apply to:
* * * * *
(2) * * *
(i) Except as provided in paragraph
(b)(2)(ii) of this section, an annual
monitoring and coordination fee shall
apply to each active water allocation or
wastewater discharge approval issued
pursuant to the Compact and
implementing regulations in this part,
regardless of whether the approval was
issued by the Commission in the form
of a docket, permit or other instrument,
or by a Signatory Party Agency under
the One Permit Program rule (§ 401.42).
* * * * *
(4) * * *
(iii) Modification of a DRBC approval.
Following Commission action on a
project, each project revision or
modification that the Executive Director
deems substantial shall require an
additional application fee calculated in
accordance with paragraph (e) of this
section and subject to an alternative
review fee in accordance with paragraph
(b)(3) of this section.
* * * * *
(c) Indexed adjustment. On July 1 of
every year, beginning July 1, 2017, all
fees established by this section will
increase commensurate with any
increase in the annual April 12-month
Consumer Price Index (CPI) for
Philadelphia, published by the U.S.
Bureau of Labor Statistics during that
year.
1
In any year in which the April 12-
month CPI for Philadelphia declines or
shows no change, the application fee
and annual monitoring and
coordination fee will remain
unchanged. Following any indexed
adjustment made under this paragraph
(c), a revised fee schedule will be
published in the Federal Register by
July 1 and posted on the Commission’s
website. Interested parties may also
obtain the fee schedule by contacting
the Commission directly during
business hours.
* * * * *
(e) * * *
T
ABLE
1
TO
§ 401.43—A
PPLICATION
F
EES
* * * Application fee * * *
*****
* * * * *
4. Add part 440 to read as follows:
PART 440—HIGH VOLUME
HYDRAULIC FRACTURING
Sec.
440.1 Purpose, authority, and relationship
to other requirements.
440.2 Definitions.
440.3 High volume hydraulic fracturing
(HVHF).
Authority: Delaware River Basin Compact
(75 Stat. 688).
§ 440.1 Purpose, authority, and
relationship to other requirements.
(a) Purpose. The purpose of this part
is to protect and conserve the water
resources of the Delaware River Basin.
To effectuate this purpose, this section
establishes standards, requirements,
conditions, and restrictions to prevent
or reduce depletion and degradation of
surface and groundwater resources and
to promote sound practices of water
resource management.
(b) Authority. This part implements
Sections 3.1, 3.2(a), 3.2 (b), 3.6(b),
3.6(h), 4.1, 5.2, 7.1, 13.1 and 14.2(a) of
the Delaware River Basin Compact.
(c) Comprehensive Plan. The
Commission has determined that the
provisions of this part are required for
the immediate and long range
development and use of the water
resources of the Basin and are therefore
incorporated into the Commission’s
Comprehensive Plan.
(d) Relationship to other Commission
requirements. The provisions of this
part are in addition to all applicable
requirements in other Commission
regulations in this chapter, dockets, and
permits.
(e) Severability. The provisions of this
part are severable. If any provision of
this part or its application to any person
or circumstances is held invalid, the
invalidity will not affect other
provisions or applications of this part,
which can be given effect without the
invalid provision or application.
(f) Coordination and avoidance of
duplication. In accordance with and
pursuant to section 1.5 of the Delaware
River Basin Compact, to the fullest
extent it finds feasible and advantageous
the Commission may enter into an
Administrative Agreement (Agreement)
with any Basin state or the Federal
Government to coordinate functions and
eliminate unnecessary duplication of
effort. Such Agreements will be
designed to: Effectuate
intergovernmental cooperation,
minimize the efforts and duplication of
state and Commission staff resources
wherever possible, ensure compliance
with Commission-approved
requirements, enhance early notification
of the general public and other
interested parties regarding proposed
activities in the Basin, indicate where a
host state’s requirements satisfy the
Commission’s regulatory objectives, and
clarify the relationship and project
review decision making processes of the
states and the Commission for projects
subject to review by the states under
their state authorities and by the
Commission under Section 3.8 and
Articles 6, 7, 10 and 11 of the Compact.
§ 440.2 Definitions.
For purposes of this part, the
following terms and phrases have the
meanings provided. Some definitions
differ from those provided in
regulations of one or more agencies of
the Commission’s member states and
the Federal Government.
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1
85 FR 51337.
2
84 FR 55235 (October 15, 2019).
3
86 FR 7049 (January 25, 2021).
Basin is the area of drainage into the
Delaware River and its tributaries,
including Delaware Bay.
Commission is the Delaware River
Basin Commission (DRBC) created and
constituted by the Delaware River Basin
Compact.
Fracturing fluid(s) is a mixture of
water (whether fresh or recycled) and/
or other fluids and chemicals or other
additives, which are injected into the
subsurface and which may include
chemicals used to reduce friction,
minimize biofouling of fractures,
prevent corrosion of metal pipes or
remove drilling mud damage within a
wellbore area, and propping agents such
as silica sand, which are deposited in
the induced fractures.
High volume hydraulic fracturing
(HVHF) is hydraulic fracturing using a
combined total of 300,000 or more
gallons of water during all stages in a
well completion, whether the well is
vertical or directional, including
horizontal, and whether the water is
fresh or recycled and regardless of the
chemicals or other additives mixed with
the water.
Hydraulic fracturing is a technique
used to stimulate the production of oil
and natural gas from a well by injecting
fracturing fluids down the wellbore
under pressure to create and maintain
induced fractures in the hydrocarbon-
bearing rock of the target geologic
formation.
Person is any natural person,
corporation, partnership, association,
company, trust, Federal, state, or local
governmental unit, agency, or authority,
or other entity, public or private.
Water resource(s) is water and related
natural resources in, on, under, or above
the ground, including related uses of
land, which are subject to beneficial
use, ownership, or control within the
hydrologic boundary of the Delaware
River Basin.
§ 440.3 High volume hydraulic fracturing
(HVHF).
(a) Determination. The Commission
has determined that high volume
hydraulic fracturing poses significant,
immediate and long-term risks to the
development, conservation, utilization,
management, and preservation of the
water resources of the Delaware River
Basin and to Special Protection Waters
of the Basin, considered by the
Commission to have exceptionally high
scenic, recreational, ecological, and/or
water supply values. Controlling future
pollution by prohibiting such activity in
the Basin is required to effectuate the
Comprehensive Plan, avoid injury to the
waters of the Basin as contemplated by
the Comprehensive Plan, and protect
the public health and preserve the
waters of the Basin for uses in
accordance with the Comprehensive
Plan.
(b) Prohibition. High volume
hydraulic fracturing in hydrocarbon
bearing rock formations is prohibited
within the Delaware River Basin.
Dated: April 13, 2021.
Pamela M. Bush,
Commission Secretary and Assistant General
Counsel.
[FR Doc. 2021–07998 Filed 4–20–21; 8:45 am]
BILLING CODE P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 426
[Docket No. SSA–2020–0002]
RIN 0960–AI54
Rescission of Rules on Improved
Agency Guidance Documents
AGENCY
: Social Security Administration.
ACTION
: Final rule.
SUMMARY
: We are rescinding our rules
on improved agency guidance
documents. We published the rules
pursuant to an Executive order (E.O.)
entitled, ‘‘Promoting the Rule of Law
Through Improved Agency Guidance
Documents,’’ signed October 9, 2019.
The October 2019 E.O. has been revoked
by an E.O. entitled, ‘‘Revocation of
Certain Executive Orders Concerning
Federal Regulation,’’ signed January 20,
2021. We are rescinding these rules
because the January 2021 E.O. requires
the heads of Federal agencies to take
steps promptly to rescind any
regulations that implement or enforce
the October 2019 E.O.
DATES
: This final rule will be effective
May 21, 2021.
FOR FURTHER INFORMATION CONTACT
:
Jennifer Dulski, Office of Regulations
and Reports Clearance, Social Security
Administration, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 966–2341. For information on
eligibility or filing for benefits, call our
national toll-free number, 1–800–772–
1213 or TTY 1–800–325–0778, or visit
our internet site, Social Security Online,
at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION
: On August
20, 2020, we published a final rule,
‘‘Improved Agency Guidance
Documents,’’ in the Federal Register.
1
This final rule, which had an effective
date of September 21, 2020, added 20
CFR part 426 to our regulations to
implement E.O. 13891, ‘‘Promoting the
Rule of Law Through Improved Agency
Guidance Documents.’’
2
On January 20, 2021, the President
issued E.O. 13992, ‘‘Revocation of
Certain Executive Orders Concerning
Federal Regulation.’’
3
E.O. 13992
revoked several E.O.s, including E.O.
13891, and directed heads of agencies to
‘‘promptly take steps to rescind any
orders, rules, regulations, guidelines, or
policies, or portions thereof,
implementing or enforcing the [revoked]
Executive Orders.’’ Because we
promulgated the final rule, ‘‘Improved
Agency Guidance Documents,’’ to
implement E.O. 13891, we must now
rescind this rule.
We are removing from our regulations
and reserving 20 CFR part 426,
consisting of §§ 426.5 through 426.25.
The regulations that we are removing set
forth the definition of ‘‘guidance
document’’ in E.O. 13891, discuss the
nonbinding nature of guidance
documents, set forth procedures to
request withdrawal or modification of
guidance documents, and set forth
additional requirements and procedures
for significant guidance documents as
prescribed by E.O. 13891. In addition,
we will remove the website we created
to comply with the requirements of E.O.
13891 (www.ssa.gov/guidance).
Although we will remove the site at
www.ssa.gov/guidance, the documents
that are referenced and linked on that
site—such as Social Security rulings,
the Program Operations Manual, the
Hearings, Appeals and Litigation Law
manual, and Chief Judge Bulletins—will
still be publicly available on our
website, www.ssa.gov.
Rulemaking Analyses and Notices
Regulatory Procedures
We follow the Administrative
Procedure Act (APA) rulemaking
procedures in 5 U.S.C. 553 when we
develop regulations. Generally, the APA
requires that an agency provide prior
notice and opportunity for public
comment before issuing a final rule.
Under 5 U.S.C. 553(b)(3)(A), agencies
are not required to provide prior notice
and opportunity for the public to
comment for a rule that is an
interpretative rule, a general statement
of policy, or a rule of agency
organization, procedure, or practice.
When we published our final rule,
‘‘Improved Agency Guidance
Documents,’’ we explained that it was
exempt from the requirement to provide
prior notice and opportunity for public
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