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RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[ 25 PA. CODE CHS. 109 AND 110 ]

Water Resources Planning

[38 Pa.B. 6266]
[Saturday, November 15, 2008]

   The Environmental Quality Board (Board) by this order amends Chapter 109 (relating to safe drinking water) and adds Chapter 110 (relating to water resources planning). The amendments add a new chapter establishing the requirements for registration of water users and recordkeeping and reporting of water withdrawal and use information, as required by 27 Pa.C.S. Chapter 31 (relating to Water Resources Planning Act) (act). These regulations specify who is required to register, keep records and report information related to withdrawals of water in this Commonwealth and details the information that is to be recorded and reported to the Department of Environmental Protection (Department). The information collected under these regulations is essential to development of the State Water Plan, which is mandated by the act.

   This order was adopted by the Board at its meeting of August 19, 2008.

A.  Effective Date

   These regulations will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.

B.  Contact Persons

   For further information contact Susan K. Weaver, Chief, Division of Water Use Planning, P. O. Box 8555, Rachel Carson State Office Building, Harrisburg, PA 17105-8555, (717) 783-8055, or Pamela G. Bishop, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department web site at www.depweb.state.pa.us.

C.  Statutory Authority

   The final-form regulations are being made under the authority of section 4 of the Pennsylvania Safe Drinking Water Act (35 P. S. § 721.4) and section 3118 of the act (relating to water use registration and reporting), which directs the Board to adopt regulations pertaining to reporting by public water suppliers and establishing requirements for the registration, periodic reporting and recordkeeping of water withdrawals and uses and under the authority of section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), authorizing and directing the Board to adopt regulations necessary for the proper performance of the work of the Department.

D.  Background of the Amendments

   The act requires the Department to complete a State Water Plan and establishes a water withdrawal registration program to collect data necessary to support the planning process. The Department does not currently know how much water is used, needed or available in this Commonwealth. The regulations will provide the data necessary to help answer those questions. The State Water Plan will provide a framework for managing this Commonwealth's water resources to most effectively provide for public health and safety, while protecting aquatic resources. All citizens will benefit from the development of a State Water Plan, which will provide decision-makers a valuable tool to guide investment, development and land use management in a manner that is sustainable and will avoid water shortages and concomitant dislocation. The data collected by these regulations will help create economic opportunity by assisting State and local decision makers to identify water resources available to support sustainable development and will help to avoid unwise investments.

   The regulations will require each public water supply agency and each hydropower facility, irrespective of the amount of withdrawal, and each person whose total withdrawal from one or more points of withdrawal within a watershed operated as a system either concurrently or sequentially exceeds an average rate of 10,000 gallons of water a day in a 30-day period to register, periodically report and keep records of their water use. In addition, each person who obtains water through interconnection with another person in an amount that exceeds an average rate of 100,000 gallons per day in any 30-day period will be required to register, periodically report and keep records of his water use. To avoid duplication of reporting requirements, the proposal recommends amending one section of Chapter 109 to indicate that compliance by public water supply agencies with Chapter 110 will fulfill compliance with the Chapter 109 annual water supply reporting requirements.

   The act establishes a Statewide Water Resources Committee (Statewide Committee) to assist the Department in developing the State Water Plan. The Statewide Committee is also charged with reviewing and commenting on regulations proposed by the Department under the act. The Statewide Committee considered the final-form regulations at their public meeting on April 18, 2008, at which time there were no public comments on the final-form regulations. There were several minor comments from the Statewide Committee on the final-form regulations, including two that identified a typographical error and a dated citation of the Right-To-Know Law. The Statewide Committee has recommended moving these final-form regulations to the Board for consideration and has indicated in writing their support of the regulatory package.

   Under 27 Pa.C.S. Chapter 7 (relating to Agricultural Advisory Board), the Department presented the final-form regulations to the Agricultural Advisory Board at that Board's meeting on April 16, 2008. The Agricultural Advisory Board was satisfied with the Department's presentation of the final-form regulations and presented no issues of concern regarding the final-form regulations.

   The proposed regulations were published at 36 Pa.B. 7260 (December 2, 2006) with a 30-day comment period. No public meetings or hearings were held on the proposed regulations. During the 30-day public comment period, comments were received from eight commentators, including the Independent Regulatory Review Commission (IRRC).

E.  Summary of Changes to the Proposed Rulemaking

   No companion Federal regulations exist.

Chapter 109

§ 109.701  (Reporting and recordkeeping)

   This section explains the reporting and recordkeeping requirements for community water systems.

Chapter 110

   There were several comments of a general nature regarding enforcement and form content. One commentator suggested elaborating on enforcement provisions in the regulations. Since sections 3133 and 3134 of the act (relating to enforcement orders; and civil remedies) address these issues, they have not been repeated in the regulations. One commentator questioned the location of the referenced forms. The forms will be available on the Department's web site or by request from the Department at (717) 772-4048.

Subchapter A.  General Provisions

§ 110.1  (relating to definitions).

   Several commentators requested clarification of terms used in the proposed rulemaking and requested consistency in referencing definitions from the act. The section has been revised by adding several new definitions and revising proposed definitions to aid in clarifying the intent of the regulations. In addition, the definitions have been revised to consistently reference the definitions in section 3102 of the act (relating to definitions).

§ 110.2 (relating to purpose)

   One commentator stated that if all customers of public water suppliers are to register and report, the requirement should be added to the purpose and general requirements sections. This section has been revised to clearly state the purpose without the duplicating registration requirement language that is contained in § 110.201 (relating to registration requirement). This section explains that the chapter establishes registration, monitoring, recordkeeping and reporting requirements for purposes of obtaining accurate information for water resources planning.

§ 110.3 (relating confidential information)

   Several commentators suggested that criteria and a process would aid in the determination of confidential information. Section 110.3 has been modified to indicate that the Department will use its established protocols and procedures for submission and protection of confidential information and processing challenges to the designations. The procedures are outlined in the Department's ''Confidential Security Information Guidance'' document, which can be accessed on the Department's web site. The heading of the section has been modified to more accurately reflect the content of the section.

§ 110.4 (relating to inspection authorization)

   Several commentators requested clarification of the circumstances when the Department would ask for records and access. The section has been modified to indicate that the Department will ask for records and access to determine compliance with the act as well as the regulations, in accordance with section 3131(c) of the act (relating to administration). While the Department may make the request in writing, the act does not require written notice of an inspection. Both the act and this section of the regulations require that the Department conducts the inspection during reasonable hours and upon reasonable notice.

§ 110.5 (relating to coordination with other water use reports)

   Several commentators requested clarification on how the Department intends to avoid duplication of efforts for reporting. This section requires persons subject to § 110.201 to cooperate with the Department in its coordination of the submission of reports under this chapter with water use reports required by the Department and Compact Basin Commissions. There is additional language in section 3118(b)(4) of the act that indicates reports submitted under other applicable statutes and regulations may satisfy reporting under the act ''to the extent that the reports provide the required information.'' Information on Discharge Monitoring Reports (DMRs) is not sufficient to comply with the data requirements of the regulations. Furthermore, few withdrawers are required to submit DMRs. Joint reporting forms have been developed to avoid duplication of reporting among the Department, Compact Basin Commissions, and other Federal and State agencies and to reduce costs to the submitter. Section 110.5 requires the regulated community to cooperate with coordinated submission of information in accordance with those forms. There were no existing reports that fulfilled all the reporting requirements.

§ 110.6 (relating to effect of registration)

   One commentator questioned the appropriateness of the narrative statement description of potential benefits of registration and reporting water use. The Department agrees and subsection (a) has been deleted. This section explains that registration of a withdrawal or use under this chapter will not be construed as either a determination of a person's water rights or approval of a withdrawal or use by the Department, another agency of the Commonwealth or a Compact Basin Commission.

Subchapter B. Registration

§ 110.201 (relating to registration requirements)

   Several commentators questioned the authority to collect withdrawal use information of those who obtain water through interconnections as well as the potential double-counting that may occur with the collection of the water use information. The terms ''withdrawal'' and ''withdrawal use'' both appear in section 3118 of the act and specifically, section 3118(a) and (b) of the act, both require persons to report their ''withdrawal or withdrawal use.'' Taken together, the act's definitions of ''withdrawal'' and ''withdrawal use'' clearly indicate that withdrawal uses include use of water that is withdrawn by another entity and transferred through interconnections. The definition of ''withdrawal'' includes the phrase ''whether or not returned to the water source,'' which implies that water not returned to the source but purveyed or transferred to another entity and consumed remains ''water that is withdrawn.'' The term ''withdrawal use'' is defined as ''any use of water that is withdrawn,'' which would then logically include water purveyed through a public water supply system. Section 3118(b) of the act requires all users subject to the registration requirement to report the amount of ''consumptive use.'' The act defines ''consumptive use'' to include ''such water that is purveyed through a public water supply system.'' Section 3118(b) of the act requires those users to register and report directly to the Department.

   When implementing the interim registration provisions of Act 220, the Department did not require the registration of large users of water who obtained all their water from public water suppliers; however, that was not intended to, nor does it, indicate that the act exempted the users from the registration and reporting requirements. At the time of interim registration, the information was not essential to the early stages of Statewide water resources planning and water use assessment. However, collection of the information from large water users who obtain water through interconnection is necessary for water use planning. In particular, the consumptive and nonconsumptive use information applicable to large users on public water supply systems may be of significant value in assessing potential critical water planning areas and in the development of critical area resource plans. The statute authorizes the registrations of those who obtain water through interconnection with a public water supply agency.

   The analyses done for the State Water Plan, including the water budget process, are designed to account for the uses and to avoid redundancy and double-counting. Changes have been made to § 110.201 to clarify that only those persons who obtain more than 100,000 gallons per day of water through interconnection with another person are required to register, rather than only those with a consumptive use greater than 100,000 gallons per day. This revision captures a larger group of users, however, by eliminating the consumptive use requirement, it will be easier to calculate.

§ 110.202 (relating to submission of registrations)

   One commentator requested the removal of the March 16, 2004, deadline. The act established the deadline of March 16, 2004, for the interim registration for then-existing withdrawals. The act also established a 30-day period for submission of registration applicable to all withdrawals and uses initiated after March 16, 2004. The final-form regulations have been revised to conform to the act's 30-day requirement.

§ 110.203 (relating to content of registration)

   Several commentators questioned the level of detail required, in particular the amounts of consumptive and nonconsumptive uses and water returned. In addition, several commentators stated that source location should be considered confidential security information under the Public Utility Confidential Security Information Disclosure Protection Act (Act 156).

   This section has been modified to delete the requirement to provide information in the registration related to consumptive and nonconsumptive uses and water returned and discharged, and the term ''as appropriate'' has been similarly deleted. The obligation to report those items has been added to § 110.304 (relating to general content of reports). The effect of these revisions is to simplify and clarify the registration contents.

   Section 3118(b)(1) of the act requires water users subject to the registration requirements to monitor, maintain records and submit to the Department periodic reports that include the amount of consumptive and nonconsumptive uses. The information is essential for water resources planning. These items have appropriately been moved to § 110.304 and included in the content of the annual reports.

   The act requires registrants to provide location information. The Department follows its sensitive information policy with regard to not disclosing location of a public water supplier's intake. As stated in response to comments in § 110.3, the Department will follow its established protocols and procedures for submission and protection of confidential information. This section has been modified to delete subsection (c) because the subject matter is covered by § 110.3. This section establishes the required content of a registration, including registrant identification and description information; and for each source the name, description, location and amount.

§ 110.204 (relating to voluntary registration)

   This section provides for voluntary registration by persons not subject to the regulation and minor revisions were made to clarify.

§ 110.205 (relating to transfer of registration)

   This section provides for transfers of registrations and establishes the prerequisites for transfers and there were no revisions made to this section.

§ 110.206 (relating to termination of registration)

   One commentator stated that sources may not be used for long periods of time and owners could face a burden of reregistering. This section provides for termination of registrations and establishes the prerequisites for termination.

   To properly plan for water resources, it is essential to have accurate reliable databases, reflecting current water uses. The Department recognizes some sources may not be used for a certain period of time, which will be reflected on the reporting form. The regulation assigns a reasonable period of 7 years to keep the records and requires termination of a registration after this period. It is the responsibility of registrants to reregister a source when its use is resumed. Reregistration is not a burden on the registrant.

Subchapter C. Reporting

§ 110.301 (relating to reporting requirements)

   This section establishes the requirement for reporting. One commentator requested clarification on whether an annual report must be submitted if the registered user does not exceed the threshold 10,000 gallon per day during the reporting year.

   For clarity, § 110.301 has been modified to state that a report is required irrespective of the quantity of withdrawal or use during the reporting year.

§ 110.302 (relating to submission of reports)

   This section establishes the dates for required submission of reports to the Department.

   One commentator questioned under what circumstances that reporting would be less frequent than annual and whether the phrase ''other user'' is necessary when the term ''including'' is used.

   As a result of the commentator's suggestion, the phrase ''or less frequently as may be prescribed by the Department'' has been deleted from § 110.302 and § 110.603 (relating to reporting). In addition, the words ''other user'' have been deleted in paragraph (2)(viii).

§ 110.303 (relating to reporting period)

   This section establishes the reporting period for reports required to be submitted to the Department and no revisions were made.

§ 110.304 (relating to general content of reports)

   This section prescribes the general contents of reports and was revised to include the information previously requested under § 110.203.

§ 110.305 (relating to user-specific contents of report)

   This section prescribes user-specific contents of reports.

   Several commentators stated that the term ''storage'' was vague and misleading. Two commentators questioned the statutory authority and water resources planning benefit of collecting employment data, as well as other details such as storage and irrigation information. One commentator suggested that the well construction information was not relevant to water resources planning.

   The Department has added the word ''water'' before the word ''storage'' in § 110.305 in response to commentator's concern. In accordance with section 3114(c)(4) of the act (relating to Statewide Water Resources Committee), the draft proposed rulemaking was presented to the Statewide Committee for review and comment. The drafts of the regulations contained considerable detail on the data requirements for reporting contained in § 110.305. The Department received comments questioning the level of detail being required. Upon consideration of the comments, the proposed regulation was revised to eliminate the details and to incorporate the concept that the specific data requirements would be in accordance with forms prescribed by the Department. The forms will be developed in consultation with the Statewide Committee, with provision for public comment.

   Water resources planning is based upon knowledge of when and how much water is being withdrawn and discharged. It is essential to know whether water is being returned or not returned to the watershed from which it was withdrawn. The Department agrees that the level of detail can be reduced and these forms are being revised to address this comment.

   The information referenced in the question regarding well construction and pumping capacity is required by the Susquehanna River Basin Commission (SRBC) and Delaware River Basin Commission (DRBC) as part of their registration programs. The Compact Basin Commissions have authority to delegate to the Department their registration and reporting programs. To eliminate redundancy of registration and reporting programs, the rulemaking has been designed to accommodate the Compact Basin Commission requirements, thereby making the Department a one-stop registration and reporting agency. See § 110.5. The Department and the Commissions need water well, meter, and disposal information for water resources planning purposes.

   Employment data is central to projections of water use in certain water use sectors, and thus is of significant use to water resources planning. This section has been modified to exclude the information that is not needed for water planning purposes. The statutory language quoted by the commentator authorizes collection of information ''including'' which term means ''but not limited to'' only the source, location and amount. The introductory language to section 3118(b) of the act indicates that the purpose for adopting regulations and establishing requirements for reporting is ''to provide accurate information for water resources planning.'' The information requested in § 110.305 is necessary to make ''an assessment and projection of existing and future withdrawal use demand and nonwithdrawal use needs'' as required under section 3112 of the act (relating to plan contents).

Subchapter D. Recordkeeping

§ 110.401 (relating to recordkeeping requirement)

   This section establishes the requirements for recordkeeping and a minor revision was made to clarify the language.

§ 110.402 (relating to retention of records)

   This section establishes the requirement for retention of records and supporting data to be a period of at least 5 years. One commentator requested clarification on the format to be used for maintaining records. Section 110.402 has been modified to clarify that records shall be kept ''in any format that allows the reproduction of the record.''

Subchapter E. Monitoring

§ 110.501  (relating to metering and measuring requirement)

   This section establishes the requirements for metering and measuring. Several commentators requested clarification on the 5% accuracy requirement.

   Section 110.501(c) has been revised to indicate that only persons whose withdrawals equal or exceed 50,000 gallons per day and persons who obtain water through interconnection in excess of 100,000 gallons per day shall measure or calculate their withdrawals and purchased water by meter or other method, accurate to within 5% of actual flow and their consumptive use, by methods accurate to within 10% of actual flow.

   Two commentators requested clarification on the alternate methods used for quantifying water use.

   Section 3118(b)(1) of the act requires the regulations to ''allow for use of the alternative methods to obtain a reasonable estimate or indirect calculation of such . . .'' There is no requirement in the act to identify alternative methods. Section 110.501(e) has been revised to recognize methods based upon ''established scientific principles, design or manufacturer's product specification, or research results.''

   One commentator expressed concern that the Department is applying more stringent requirements to those water users in river basin commissions.

   Proposed § 110.501(e) has been deleted.

   One commentator suggested to require a meter on an individual point of withdrawal that uses less than 50,000 gallons per day solely because it is part of a larger system is burdensome and unnecessary.

   Section 110.501(c) has been revised and does not require meters on each point of withdrawal. Revised § 110.501(c) allows for measuring or calculating withdrawals by means of a meter ''or other method.''

   One commentator expressed support for the inclusion of a provision for granting exceptions to the 5% accuracy standard if maintenance of the standard is not technically feasible or economically practicable.

§ 110.502 (relating to recording frequency)

   This section establishes the recording frequency of withdrawals and withdrawal uses subject to the regulation.

   Several commentators requested clarification on recording and recordkeeping frequencies for withdrawals and uses, as well as including provisions acknowledging river basin requirements.

   The regulations have been modified to provide for monthly recording of consumptive uses and clarify the requirements.

   One commentator suggested annual reporting for nonconsumptive and consumptive use be made on a facility basis, rather than by source.

   The Department agrees and the annual reporting forms request facility-based reporting of uses.

§ 110.503 (relating to measuring requirement in critical water planning area)

   This section provides the Department authority to require more accurate measurement of withdrawals or withdrawal uses in critical water planning areas and establishes the criteria for imposing the requirements.

   Two commentators questioned the Department's authority for imposing additional requirements within critical water planning areas.

   Section 3118(b) of the act authorizes the adoption of the regulations, establishing the requirements for reporting and recordkeeping to obtain accurate information for water resources planning. Section 110.503 has been revised and now provides that in a critical water planning area, the Department may require registrants in those areas to use more accurate measuring methods and to record measurements more frequently only when the Department issues a written notice including the explanation of the basis for determination that more accurate and frequent measurements are necessary to develop a critical area resource plan.

Subchapter F. Water Conservation

§ 110.601 (relating to registration)

   This section provides that a person who has implemented a water conservation project or practice may register the project or practice with the Department and no revisions were made.

§ 110.602 (relating to registration information)

   This section establishes the required information for registration of water conservation projects or practices. The act defines one term but uses both terms and this section was revised to incorporate the use of both terms.

§ 110.603 (relating to reporting)

   This section requires each person who has registered a water conservation project or practice to submit annual reports to the Department documenting the continuing effectiveness of the project or practice. The term ''or less frequently'' was removed.

§ 110.604 (relating to Water Resources Technical Assistance Center)

   This section requires the Department establish a water resources technical assistance center to promote voluntary water conservation and to provide technical assistance on water resources uses issues. This section was revised to reflect the correct citation of the act.

F.  Benefits, Costs and Compliance

Benefits

   Citizens of this Commonwealth will benefit from the development of a State Water Plan, which will provide decision-makers a valuable tool to guide investment, development and land use management in a manner that is sustainable and will avoid water shortages and concomitant dislocation. The data collected under this regulation is necessary to development of the State Water Plan.

   These final-form regulations will help create economic opportunity by assisting decision makers in identifying water resources available to support sustainable development and will help to avoid unwise investment in unsustainable resources. The Commonwealth does not currently know how much water is used, needed or available. The regulations will provide the data necessary to help answer those questions.

Compliance Costs

   Persons who withdraw or use 10,000 gallons of water or more per day and all public water suppliers and hydropower facilities will be required to register and report under the regulations. One-time metering costs, for meter equipment, for a limited number of public water suppliers who don't currently meter their sources, may range from $50 to $2,000 per registered source. Annual costs for recordkeeping and reporting may range from 1 to 12 work-days per year per registrant. Many users, including most that are currently regulated by either the Department or the SRBC or the DRBC, already have the necessary recordkeeping and reporting processes in place and should incur no additional costs. Consolidation of reporting requirements may result in reduced costs for some of those users.

Compliance Assistance Plan

   Registration workshops were held across this Commonwealth in 2004 to assist in the initial registration required by the act. No additional workshops are planned.

Paperwork Requirements

   Persons subject to these regulations will be required to submit an initial registration form for each source of water withdrawal, describing the location and quantity of withdrawal and type of use. Annually, thereafter, they will be required to submit a report of their monthly total withdrawals from each source and their total monthly water use. Under the regulations, the registration and reporting requirements of the Department, including the Annual Water Supply Report under the Pennsylvania Safe Drinking Water Act (35 P. S.§§ 721.1--721.17), and the SRBC and the DRBC will be consolidated in single registration and reporting forms to be submitted solely to the Department.

G.  Pollution Prevention

   The Federal Pollution Prevention Act of 1990 established a National policy that promotes pollution prevention as the preferred means for achieving State environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally-friendly materials, more efficient use of raw materials, and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. These regulations has incorporated the following pollution prevention incentives.

   Water conservation practices encouraged and fostered by these regulations will result in decreased withdrawals of water and discharges of wastewater. Reduced energy consumption and chemical use will also be realized. Less diminution of stream flows, particularly during periods of low flows is pollution prevention as recognized by the courts. In addition, reductions in wastewater discharges will reduce pollution of our water resources.

H.  Sunset Review

   These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking, published at 36 Pa.B. 7260 to IRRC and the Chairpersons of the House and Senate Environmental Resources and Energy Committees (Committees) for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Department has considered all comments from IRRC, the Committees and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on October 1, 2008, these final-form regulations were deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 2, 2008, and approved the final-form regulations.

J.  Findings

   The Board finds that:

   (1)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law, and all comments were considered.

   (3)  These regulations do not enlarge the purpose of the proposal published at 36 Pa.B. 7260.

   (4)  These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.

K.  Order

   The Board, acting under the authorizing statutes, orders that:

   (1)  The regulations of the Department of Environmental Protection, 25 Pa. Code Chapters 109 and 110, are amended by amending § 109.701 and by adding §§ 110.1--110.6, 110.201--110.206, 110.301--110.305, 110.401, 110.402, 110.501--110.503 and 110.601--110.604, to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

   (2)  The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.

   (3)  The Chairperson of the Board shall submit this order and Annex A to IRRC and the Committees as required by the Regulatory Review Act.

   (4)  The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

   (5)  This order shall take effect immediately upon publication.

JOHN HANGER,   
Acting Chairperson

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 5818 (October 18, 2008).)

   Fiscal Note:  Fiscal Note 7-403 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 25.  ENVIRONMENTAL PROTECTION

PART I.  DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart C.  PROTECTION OF NATURAL RESOURCES

ARTICLE II.  WATER RESOURCES

CHAPTER 109.  SAFE DRINKING WATER

Subchapter G.  SYSTEM MANAGEMENT RESPONSIBILITIES

§ 109.701.  Reporting and recordkeeping.

*      *      *      *      *

   (b)  Reporting requirements for community water systems. In addition to the reporting requirements for a public water system, a community water supplier shall comply with the following requirements:

   (1)  The water supplier shall prepare a monthly operational report on forms provided by the Department or in a form acceptable to the Department. The report shall be maintained on file by the operator for at least 2 years and submitted upon request of the Department. The report must include at least the following:

   (i)  The water produced daily.

   (ii)  The chemical added daily.

   (iii)  The physical and chemical determinations taken daily.

   (iv)  Water-level monitoring data for supply and any associated monitoring wells.

   (v)  The maintenance performed.

   (vi)  Operational problems.

   (2)  The water supplier shall comply with the applicable requirements of registration, reporting, recordkeeping and monitoring in Chapter 110, Subchapters B--E, regarding registration, reporting, recordkeeping and monitoring.

   (3)  The water supplier shall keep a record of complaints received from consumers related to the act or this chapter on forms provided by the Department or in a form acceptable to the Department. Water suppliers complying with the Pennsylvania Public Utility Commission (PUC) complaint recordkeeping requirements under 52 Pa. Code § 65.3 (relating to complaints) shall be in compliance with this subsection if the complaints related to the act or this chapter are cross referenced within the PUC required records in a manner to make them readily available. The records shall be maintained on file by the operator for at least 3 years and submitted upon request of the Department.

*      *      *      *      *

CHAPTER 110.  WATER RESOURCES PLANNING

   (Editor's Note:  Chapter 110 is new and is printed in regular type to enhance readability.)

Subchap.

A.GENERAL PROVISIONS
B.REGISTRATION
C.REPORTING
D.RECORDKEEPING
E.MONITORING
F.WATER CONSERVATION

Subchapter A.  GENERAL PROVISIONS

Sec.

110.1.Definitions.
110.2.Purpose.
110.3.Confidential information.
110.4.Inspection authorization.
110.5.Coordination with other water use reports.
110.6.Effect of registration.

§ 110.1.  Definitions.

   The following words and phrases, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act--27 Pa.C.S. Chapter 31 (relating to water resources planning).

   Average rate--Total quantity in gallons of water withdrawn or used during a period of time divided by the number of days in the period.

   Basin--As defined in section 3102 of the act (relating to definitions).

   Calculate or calculation--Mathematical computations, or the act of computing, for the purposes of water use registration or reporting, or both, usually based on pump intake rate and duration of pumping or similar factors.

   Compact basin commission--An interstate commission having jurisdiction with respect to the planning, development or regulation of water resources within a basin in this Commonwealth, created by interstate compact or Federal-interstate compact.

   Confidential information--

   (i)  As defined in section 3102 of the act.

   (ii)  The term also includes confidential security information, as defined in the Public Utility Confidential Security Information Disclosure Protection Act, which has been designated by a public utility in accordance with that act.

   Consumptive use--As defined in section 3102 of the act.

   Critical area resource plan--As defined in section 3102 of the act.

   Critical water planning area--As defined in section 3102 of the act.

   Deep well injection--As defined in section 3102 of the act.

   Groundwater--As defined in section 3102 of the act.

   Hydropower facility--A facility that produces electricity by the action of water, not including steam, passing through a turbine.

   Nonconsumptive use--As defined in section 3102 of the act.

   Nonwithdrawal use--As defined in section 3102 of the act.

   Person--As defined in section 3102 of the act.

   Public Utility Confidential Security Information Disclosure Protection Act--36 P. S §§ 2141.1--2141.6.

   Public water supply agency--As defined in section 3102 of the act.

   Source--

   (i)  The point of withdrawal.

   (ii)  The term includes point of interconnection through which water is obtained.

   Statewide Committee--The Statewide Water Resources Committee established under section 3114(a) of the act (relating to Statewide Water Resources Committee).

   Surface water--As defined in section 3102 of the act.

   System--Two or more points of withdrawal that are adjacent or geographically proximate to each other, operated concurrently or sequentially for use in a common operation.

   Use--The term may include withdrawal use, nonwithdrawal use, consumptive use or nonconsumptive use, or a combination of any of these.

   Water conservation project or practice--

   (i)  As defined in section 3102 of the act, as ''water conservation practices and measures.''

   (ii)  The term includes those projects and practices identified in section 3112(a)(11) of the act (relating to plan contents).

   Water resource--As defined in section 3102 of the act.

   Watershed--As defined in section 3102 of the act.

   Withdrawal--As defined in section 3102 of the act.

   Withdrawal use--As defined in section 3102 of the act.

§ 110.2.  Purpose.

   This chapter establishes the registration, monitoring, recordkeeping and reporting requirements for purposes of obtaining accurate information for water resources planning.

§ 110.3.  Confidential information.

   (a)  Except as provided in subsection (b), information required to be submitted to the Department under this chapter shall be subject to the Right-to-Know Law (65 P. S. §§ 67.101--67.3104).

   (b)  Each person who submits information under this chapter that the person claims is confidential information under either the act or the Public Utility Confidentiality Security Information Disclosure Protection Act, shall identify or designate the confidential information and provide a justification for its confidential nature, in accordance with protocols and procedures for submitting confidential information and addressing challenges to the designations as established by the Department.

§ 110.4.  Inspection authorization.

   The Department, its employees and authorized agents are authorized, during reasonable hours and upon reasonable notice, to make inspections and conduct tests or sampling, or examine books, papers and records, including electronic records, pertinent to a matter under investigation, to determine compliance with the act and this chapter, as it deems necessary. The persons subject to § 110.201 (relating to registration requirement) shall grant access to, and make available upon request of, the Department, its employees and authorized agents, the facilities and records necessary for conducting the inspections, tests, sampling or examinations.

§ 110.5.  Coordination with other water use reports.

   (a)  The persons subject to § 110.201 (relating to registration requirement) shall cooperate with the Department in its coordination of the submission of reports under this chapter with water use reports required by the Department and compact basin commissions.

   (b)  The persons subject to § 110.201 shall submit information in accordance with joint reporting forms developed by the Department to facilitate the submission of water use information required by the Department and compact basin commissions, to reduce duplicate and repetitious reporting requirements. The joint forms shall be used in lieu of individual forms for the required reports.

§ 110.6.  Effect of registration.

   Registration under this chapter will not be construed as either a determination of a person's water rights or approval of a withdrawal or use by the Department, another agency of the Commonwealth or a compact basin commission.

Subchapter B.  REGISTRATION

Sec.

110.201.Registration requirement.
110.202.Submission of registrations.
110.203.Content of registration.
110.204.Voluntary registration.
110.205.Transfer of registration.
110.206.Termination of registration.

§ 110.201.  Registration requirement.

   The following persons shall register the information specified in § 110.203 (relating to content of registration) with the Department:

   (1)  Each owner of a public water supply agency.

   (2)  Each owner of a hydropower facility.

   (3)  Each person whose total withdrawal from a point of withdrawal, or from multiple points of withdrawal operated as a system either concurrently or sequentially, within a watershed exceeds an average rate of 10,000 gallons per day in any 30-day period.

   (4)  Each person who obtains water through interconnection with another person in an amount that exceeds an average rate of 100,000 gallons per day in any 30-day period.

   (5)  Within an area designated as a critical water planning area, each person who obtains water through interconnection with another person in an amount that exceeds an average rate of 10,000 gallons per day in any 30-day period.

§ 110.202.  Submission of registrations.

   Registrations shall be submitted to the Department by March 16, 2004, or 30 days following initiation of a water withdrawal or withdrawal use subject to § 110.201 (relating to registration requirement), whichever is later.

§ 110.203.  Content of registration.

   A registrant shall provide information, on forms prescribed by the Department and developed in consultation with the Statewide Committee, including:

   (1)  Registrant identification and description information.

   (2)  For each source:

   (i)  Name, description and location.

   (ii)  Amount of water withdrawn or obtained through interconnection with another person, or instream hydropower use.

§ 110.204.  Voluntary registration.

   (a)  A person, not subject to § 110.201 (relating to registration requirement), may voluntarily register with the Department the water withdrawal or withdrawal use, in accordance with the registration provisions of this subchapter.

   (b)  Notwithstanding §§ 110.301 and 110.401 (relating to reporting requirement; and recordkeeping requirement), voluntary registrants shall monitor, maintain records and report to the Department in accordance with the other provisions of Subchapters C--E (relating to reporting; recordkeeping; and monitoring).

§ 110.205.  Transfer of registration.

   The Department will transfer a registration, if the following conditions are met:

   (1)  The registrant and transferee are in compliance with this chapter.

   (2)  No later than 30 days subsequent to the transfer, the transferee submits the following to the Department:

   (i)  A request for transfer of the registration, on a form prescribed by the Department.

   (ii)  A written statement signed by the registrant and the transferee, containing the date of the transfer of registration and acknowledging the transferee's recordkeeping and reporting responsibilities.

§ 110.206.  Termination of registration.

   (a)  Except for a public water supply agency or hydropower facility, when a person's combined withdrawals from all sources decrease for a 12-month period so that the person is no longer subject to § 110.201 (relating to registration requirement), the person may file with the Department, on forms provided by the Department, a written notice of reduction and request for termination of registration.

   (b)  When a registered withdrawal for a source or use over a 12-month period is zero, or if a withdrawal or use has been terminated, the person responsible for the withdrawal or use may file with the Department, on forms provided by the Department, a written notice of termination and request for termination of registration related to that source or use.

   (c)  Upon receipt of proper written request for termination, the Department will terminate the registration and notify the registrant.

   (d)  When a registered withdrawal or use over seven consecutive 12-month periods is zero, based upon reports submitted in accordance with Subchapter C (relating to reporting), the Department will terminate the registration and notify the registrant.

Subchapter C.  REPORTING

Sec.

110.301.Reporting requirement.
110.302.Submission of reports.
110.303.Reporting period.
110.304.General contents of report.
110.305.User-specific contents of report.

§ 110.301.  Reporting requirement.

   Each person subject to § 110.201 (relating to registration requirement), irrespective of the quantity of withdrawal or use during the reporting year, shall submit reports to the Department in accordance with this subchapter, regarding the withdrawal and use, unless the registration has been terminated in accordance with § 110.206 (relating to termination of registration).

§ 110.302.  Submission of reports.

   Reports shall be submitted annually to the Department, on forms prescribed by the Department and developed in consultation with the Statewide Committee, no later than:

   (1)  March 31--Public water supply agency.

   (2)  June 30--Any user except a public water supply agency, including:

   (i)  Power generation facility.

   (ii)  Manufacturing industry user.

   (iii)  Mineral industry user.

   (iv)  Bulk, vended, retail and bottled water systems.

   (v)  Agricultural user.

   (vi)  Golf course user.

   (vii)  Ski resort.

§ 110.303.  Reporting period.

   Reports must provide information for the calendar year preceding the date of submission.

§ 110.304.  General contents of report.

   A report must include the following:

   (1)  Items under § 110.203 (relating to content of registration).

   (2)  Amount of consumptive and nonconsumptive uses.

   (3)  Locations and amounts of any waters returned or discharged.

   (4)  Amounts of water transferred between public water supply agencies by means of interconnections.

§ 110.305.  User-specific contents of report.

   In addition to the contents specified in § 110.203 (relating to content of registration), registrants shall submit user-specific information, including:

   (1)  Public water supply agency.

   (i)  Connections and water transfers.

   (ii)  Service area map.

   (iii)  Metering.

   (iv)  Water storage information.

   (v)  Customer type information.

   (2)  Power generation facility including hydropower and thermo-electric.

   (i)  Generating capacities.

   (ii)  Generating units.

   (iii)  Water storage information.

   (3)  Manufacturing industry.

   (i)  Employment.

   (ii)  Water storage information.

   (4)  Mineral industry.

   (i)  Types of operations.

   (ii)  Employment.

   (iii)  Water storage information.

   (5)  Bulk, vended, retail and bottled water.

   (i)  Employment.

   (ii)  Water storage information.

   (6)  Agriculture.

   (i)  Irrigation water use.

   (ii)  Animal water use.

   (iii)  Water storage information.

   (7)  Golf course.

   (i)  Irrigated areas and water use by tees, greens, fairways and other land coverages.

   (ii)  Irrigation system information.

   (iii)  Employment.

   (iv)  Water storage information.

   (8)  Ski resort.

   (i)  Snowmaking acreage.

   (ii)  Employment.

   (iii)  Water storage information.

Subchapter D.  RECORDKEEPING

Sec.

110.401.Recordkeeping requirement.
110.402.Retention of records.

§ 110.401.  Recordkeeping requirement.

   A person subject to § 110.201 (relating to registration requirement) shall make and maintain a record of the items required under Subchapters B and C (relating to registration; and reporting), including supporting data, unless the registration has been terminated in accordance with § 110.206 (relating to termination of registration).

§ 110.402.  Retention of records.

   Records required to be maintained under § 110.401 (relating to recordkeeping requirement), including supporting data, shall be kept for at least 5 years in any format that allows reproduction of the record.

Subchapter E.  MONITORING

Sec.

110.501.Metering and measuring requirement.
110.502.Recording frequency.
110.503.Measuring requirement in critical water planning areas.

§ 110.501.  Metering and measuring requirement.

   (a)  Each public water supply agency shall measure its withdrawals and water transferred through interconnection with another public water supply agency by means of a continuous-recording device or flow meter, accurate to within 5% of actual flow.

   (b)  Each hydropower facility shall measure its withdrawal and instream hydropower use by means of a continuous-recording device or flow meter or shall calculate its withdrawal and use based upon electrical generation or turbine flow rates or other method, accurate to within 5% of actual flow.

   (c)  Each person whose total withdrawal from a point of withdrawal, or from multiple points of withdrawal operated as a system either concurrently or sequentially, within a watershed equals or exceeds an average rate of 50,000 gallons per day in any 30-day period and each person who obtains water through interconnection with another person in an amount that exceeds an average rate of 100,000 gallons per day in any 30-day period shall measure or calculate:

   (1)  Withdrawals, and water obtained through interconnection with another person by means of a continuous-recording device or flow meter or other method, accurate to within 5% of actual flow.

   (2)  Consumptive uses by a means or method accurate to within 10% of actual flow.

   (d)  Upon written request from a registrant, the Department may grant exceptions to the 5% or 10% performance standards, if maintenance of the standard is not technically feasible or economically practicable.

   (e)  A person who is subject to § 110.204(b) (relating to voluntary registration) or § 110.301 (relating to reporting requirement) but is not subject to subsections (a)--(c) shall measure or calculate the withdrawals or uses by a means or method, which is based upon established scientific principles, design or manufacturer's product specifications, or research results.

§ 110.502.  Recording frequency.

   Withdrawals and uses subject to § 110.501(a) and (b) (relating to metering and measuring requirement) shall be recorded on a daily basis. Withdrawals and water obtained through interconnection with another person subject to § 110.501(c) shall be recorded on a weekly basis. Uses subject to § 110.501(c) shall be recorded monthly. Withdrawals and uses subject to § 110.501(e) shall be recorded monthly.

§ 110.503.  Measuring requirement in critical water planning areas.

   (a)  The Department may require persons subject to § 110.201 (relating to registration requirement) located within a critical water planning area to measure or calculate their withdrawals and uses by means of a more accurate measuring method (but not more accurate than 5%) and record the measurements on a more frequent basis (not to exceed daily) than required in accordance with §§ 110.501 and 110.502 (relating to metering and measuring requirement; and recording frequency), if the Department determines that more accurate data is required for the development of a critical area resource plan in a watershed within a critical water planning area. Upon receipt of written notice from the Department, including an explanation of the basis for the determination, those persons shall begin the measurements or calculations within 180 days.

   (b)  In making the determination, the Department will consider the necessity of requiring more accurate data and having it recorded more frequently than required by §§ 110.501 and 110.502, from various categories of water users, for effective critical area resource planning in the specific watershed and the costs to registrants of providing the accuracy and frequency.

Subchapter F.  WATER CONSERVATION

Sec.

110.601.Registration.
110.602.Registration information.
110.603.Reporting.
110.604.Water Resources Technical Assistance Center.

§ 110.601.  Registration.

   A person who has implemented a water conservation project or practice may register the project or practice with the Department.

§ 110.602.  Registration information.

   Registration of water conservation projects or practices must be on forms, prescribed by the Department, containing information including the following:

   (1)  The registrant name and address.

   (2)  A 7.5-minute United States Geological Survey Quadrangle map, or acceptable substitute, showing the location of the project or practice.

   (3)  A description of the project or practice, including information detailing a description of:

   (i)  Project or practice prior and subsequent to implementation of a water conservation program.

   (ii)  Quantity of demand and withdrawal prior and subsequent to implementation of a water conservation program, showing a reduction in demand or withdrawal.

   (iii)  Quantity of consumptive use prior and subsequent to implementation of a water conservation program, showing a reduction in consumptive use.

   (iv)  Improvements in water use efficiency, including plumbing retrofit programs.

   (v)  Reduction of water leakage, loss and waste.

   (vi)  Improvement in reuse and recycling of water.

   (vii)  Increase of supply or storage of water.

   (viii)  Improvements in land management practices to conserve water or to preserve or increase groundwater recharge.

   (ix)  Conservation-based rate structure.

   (x)  Water provided to offset water use during drought periods.

§ 110.603.  Reporting.

   Each person who has registered a water conservation project or practice in accordance with this subchapter shall submit annually to the Department, on forms prescribed by the Department and developed in consultation with the Statewide Committee, a report documenting the continuing effectiveness of the project or practice.

§ 110.604.  Water Resources Technical Assistance Center.

   The Department will establish a Water Resources Technical Assistance Center to promote voluntary water conservation and to provide technical assistance on water resources use issues, including programs identified in section 3120(a) of the act (relating to water conservation).

[Pa.B. Doc. No. 08-2057. Filed for public inspection November 14, 2008, 9:00 a.m.]



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