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View Resolution No. 2022-04 (pdf)

Resolution No. 2022-04

A RESOLUTION to amend the Comprehensive Plan and DRBC regulations regarding importations of water into and exportations of water from the Delaware River Basin and discharges of wastewater from high volume hydraulic fracturing ("HVHF") and HVHF-related activities.

WHEREAS, by a Resolution for the Minutes on February 25, 2021, the Commissioners directed the Executive Director to prepare and publish for public comment a set of amendments to the Comprehensive Plan and implementing regulations to update the Commission's policies and provisions concerning importation and exportation of water and wastewater into and from the Basin and "to include such other proposed amendments . . . as [the Executive Director, in consultation with the Commissioners] deem necessary or appropriate"; and

WHEREAS, in accordance with the Commissioners' February 25, 2021 directive, the Commission on October 28, 2021, issued a Notice of Proposed Rulemaking, FAQs and proposed amended rule text to: 

• amend the Water Code by clarifying the circumstances in which exportations of water, including wastewater, from the Basin and importations of water, including wastewater, into the Basin are considered by the Commission and the factors to be used in evaluating whether such proposed imports and exports of water may be approved;
  
  
• amend the Commission's Special Regulations, 18 C.F.R. Part 440—High Volume Hydraulic Fracturing, to prohibit the discharge of wastewater from HVHF and HVHF-related activities to waters or land within the Basin; and
  
  
• amend Article 4 of the Commission's Water Quality Regulations to facilitate the alignment of certain Basin state discharge permits with the Commission's Special Regulations by incorporating into the Water Quality Regulations the prohibition on the discharge of wastewater from HVHF and HVHF-related activities; and

WHEREAS, prior to the close of the comment period on February 28, 2022, the Commission held five (5) virtual public hearings on the draft rules: two on December 8, 2021; two on December 15, 2021; and one on February 3, 2022; and

WHEREAS, during the comment period, the Commission heard oral comment on the draft rules from 73 individuals and received 2,388 written submissions, many of which included multiple comments. Transcripts from each of the public hearings and copies of all of the written comments are posted on the Commission's website; and

WHEREAS, the Commission staff, in consultation with the Commissioners and their technical and policy advisors, has developed a detailed response to comments and a set of final regulations; now therefore,

BE IT RESOLVED by the Delaware River Basin Commission:

A. The Commission hereby finds and determines that:

1. The waters of the Delaware River Basin are limited in quantity, and the Basin is frequently subject to drought warnings, drought declarations, and drought operations due to limited water supply storage and streamflow during dry periods. In addition, portions of the Basin have been delineated by the Commission as groundwater protected areas due to water shortages. Therefore, it is the policy of the Commission to promote the conservation and preservation of water and related natural resources, including aquatic ecosystems, and effectuate the Comprehensive Plan and the uses of the water resources of the Basin identified therein, by discouraging, limiting, or placing conditions on the exportation of Basin water as may be required to protect the health and safety of Basin residents, aquatic ecosystems and the uses of water identified in the Compact and Comprehensive Plan.
   
   
2. Basin waters have limited capacity to assimilate pollutants without significant impacts to the health and safety of Basin residents, the health and functioning of aquatic ecosystems in the Basin, and the effectuation of the Comprehensive Plan. Accordingly, it is the policy of the Commission to discourage, limit, or condition the importation of wastewater into the Delaware River Basin as necessary to avoid impairment of Basin waters.
   
   
3. The discharge of wastewater from HVHF and HVHF-related activities poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the Basin’s water resources.
   
   
4. The Commission further finds and determines that controlling future pollution by prohibiting discharges of wastewater from HVHF and HVHF-related activities to waters or land within 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. The Commission hereby:

1. adopts the December 7, 2022 Comment and Response Document in its entirety.
   
   
2. adopts the revised regulations attached hereto as its final regulations and incorporates the final regulations into the Comprehensive Plan.
   
   

/s/ Lisa Daniels
Chair Pro Tem

/s/ Pamela M. Bush
Commission Secretary

ADOPTED:  December 7, 2022