N.Y. Comp. Codes R. & Regs. tit. 21 § 1806.22

Current through Register Vol. 46, No. 18, May 1, 2024

Section 1806.22 - Standards for consumptive uses of water

(a) The project sponsors of all consumptive water uses subject to review and approval under section 1806.4, 1806.5 or 1806.6 of this Part shall comply with this section.

(b) Mitigation. All project sponsors whose consumptive use of water is subject to review and approval under section 1806.4, 1806.5 or 1806.6 of this Part shall mitigate such consumptive use. Except to the extent that the project involves the diversion of the waters out of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. Mitigation may be provided by one, or a combination of the following:

(1) during low flow periods as may be designated by the commission for consumptive use mitigation;

(i) reduce withdrawal from the approved source(s), in an amount equal to the project's total consumptive use, and withdraw water from alternative surface water storage or aquifers or other underground storage chambers or facilities approved by the commission, from which water can be withdrawn for a period of 90 days without impact to surface water flows;

(ii) release water for flow augmentation, in an amount equal to the project's total consumptive use, from surface water storage or aquifers, or other underground storage chambers or facilities approved by the commission, from which water can be withdrawn for a period of 90 days without impact to surface water flows;

(iii) discontinue the project's consumptive use, except that reduction of project sponsor's consumptive use to less than 20,000 gpd during periods of low flow shall not constitute discontinuance;

(2) use, as a source of consumptive use water, surface storage that is subject to maintenance of a conservation release acceptable to the commission. In any case of failure to provide the specified conservation release, such project shall provide mitigation in accordance with paragraph (3) of this subdivision, for the calendar year in which such failure occurs, and the commission will reevaluate the continued acceptability of the conservation release;

(3) provide monetary payment to the commission, for annual consumptive use, in an amount and manner prescribed by the commission;

(4) implement other alternatives approved by the commission.

(c) Determination of manner of mitigation. The commission will, in its sole discretion, determine the acceptable manner of mitigation to be provided by project sponsors whose consumptive use of water is subject to review and approval. Such a determination will be made after considering the project's location, source characteristics, anticipated amount of consumptive use, proposed method of mitigation and their effects on the purposes set forth in section 1806.2 of this Part, and any other pertinent factors. The commission may modify, as appropriate, the manner of mitigation, including the magnitude and timing of any mitigating releases, required in a project approval.

(d) Quality of water released for mitigation. The physical, chemical and biological quality of water released for mitigation shall at all times meet the quality required for the purposes listed in section 1806.2 of this Part, as applicable.

(e) Approval by rule for consumptive uses.

(1) Except with respect to projects involving hydrocarbon development subject to the provisions of subdivision (f) of this section, any project whose sole source of water for consumptive use is a public water supply, may be approved by the executive director under this subdivision in accordance with the following, unless the executive director determines that the project cannot be adequately regulated under this approval by rule.

(i) Notification of intent. No fewer than 90 days prior to the construction or implementation of a project or increase above a previously approved quantity of consumptive use, the project sponsor shall: submit a notice of intent (NOI) on forms prescribed by the commission, and the applicable application fee, along with any required attachments.

(ii) Within 10 days after submittal of an NOI under subparagraph (i) of this paragraph, the project sponsor shall satisfy the notice requirements set forth in section 1806.15 of this Part.

(2) Metering, daily use monitoring and quarterly reporting. The project sponsor shall comply with metering, daily use monitoring and quarterly reporting as specified in section 1806.30 of this Part.

(3) Standard conditions. The standard conditions set forth in section 1806.21 of this Part above shall apply to projects approved by rule.

(4) Mitigation. The project sponsor shall comply with mitigation in accordance with paragraph (b)(2) or (3) of this section.

(5) Compliance with other laws. The project sponsor shall obtain all necessary permits or approvals required for the project from other Federal, State or local government agencies having jurisdiction over the project. The commission reserves the right to modify, suspend or revoke any approval under this subdivision if the project sponsor fails to obtain or maintain such approvals.

(6) The executive director may grant, deny, suspend, rescind, modify or condition an approval to operate under this approval by rule, or renew an existing approval by rule previously granted hereunder, and will notify the project sponsor of such determination, including the quantity of consumptive use approved.

(7) Approval by rule shall be effective upon written notification from the executive director to the project sponsor, shall expire 15 years from the date of such notification, and shall be deemed to rescind any previous consumptive use approvals.

(f) Approval by rule for consumptive use related to unconventional natural gas and other hydrocarbon development.

(1) Any unconventional natural gas development project, or any hydrocarbon development project subject to review and approval under section 1806.4, 1806.5, or 1806.6 of this Part, shall be subject to review and approval by the executive director under this subdivision regardless of the source or sources of water being used consumptively.

(2) Notification of intent. Prior to undertaking a project or increasing a previously approved quantity of consumptive use, the project sponsor shall submit a notice of intent (NOI) on forms prescribed by the commission, and the appropriate application fee, along with any required attachments.

(3) Within 10 days after submittal of an NOI under paragraph (2) of this subdivision, the project sponsor shall satisfy the notice requirements set forth in section 1806.15 of this Part.

(4) The project sponsor shall comply with metering, daily use monitoring and quarterly reporting as specified in section 1806.30 of this Part, or as otherwise required by the approval by rule. Daily use monitoring shall include amounts delivered or withdrawn per source, per day, and amounts used per gas well, per day, for well drilling, hydrofracture stimulation, hydrostatic testing, and dust control. The foregoing shall apply to all water, including stimulation additives, flowback, drilling fluids, formation fluids and production fluids, utilized by the project. The project sponsor shall also submit a post-hydrofracture report in a form and manner as prescribed by the commission.

(5) The project sponsor shall comply with the mitigation requirements set forth in subdivision (b) of this section.

(6) Any flowback or production fluids utilized by the project sponsor for hydrofracture stimulation undertaken at the project shall be separately accounted for, but shall not be included in the daily consumptive use amount calculated for the project, or be subject to the mitigation requirements of subdivision (b) of this section.

(7) The project sponsor shall obtain all necessary permits or approvals required for the project from other Federal, state, or local government agencies having jurisdiction over the project. The executive director reserves the right to modify, suspend or revoke any approval under this subdivision of this section if the project sponsor fails to obtain or maintain such approvals.

(8) The project sponsor shall certify to the commission that all flowback and production fluids have been re-used or treated and disposed of in accordance with applicable state and Federal law.

(9) The executive director may grant, deny, suspend, rescind, modify or condition an approval to operate under this approval by rule, or renew an existing approval by rule granted hereunder, and will notify the project sponsor of such determination, including the sources and quantity of consumptive use approved. The issuance of any approval hereunder shall not be construed to waive or exempt the project sponsor from obtaining commission approval for any water withdrawals or diversions subject to review pursuant to section 1806.4(a) of this Part. Any sources of water approved pursuant to this section shall be further subject to any approval or authorization required by the member jurisdiction.

(10) An approval by rule shall be effective upon written notification from the executive director to the project sponsor and shall expire 15 years from the date of such notification.

(11) In addition to water sources approved for use by the project sponsor pursuant to section 1806.4 of this Part or this section, for unconventional natural gas development or hydrocarbon development, whichever is applicable, a project sponsor issued an approval by rule pursuant to paragraph (9) of this subdivision may utilize any of the following water sources at the drilling pad site, subject to such monitoring and reporting requirements as the commission may prescribe:

(i) Tophole water encountered during the drilling process, provided it is used only for drilling or hydrofracture stimulation.

(ii) Precipitation or stormwater collected on the drilling pad site, provided it is used only for drilling or hydrofracture stimulation.

(iii) Drilling fluids, formation fluids, flowback or production fluids obtained from a drilling pad site, production well site or hydrocarbon water storage facility, provided it is used only for hydrofracture stimulation, and is handled, transported and stored in compliance with all standards and requirements of the applicable member jurisdiction.

(iv) Water obtained from a hydrocarbon water storage facility associated with an approval issued by the commission pursuant to section 1806.4(a) of this Part or by the executive director pursuant to this section, provided it is used only for the purposes authorized therein, and in compliance with all standards and requirements of the applicable member jurisdiction.

(12) A project sponsor issued an approval by rule pursuant to paragraph (9) of this subdivision may utilize a source of water approved by the commission pursuant to section 1806.4(a) of this Part, or by the executive director pursuant to paragraph (14) of this subdivision, and issued to persons other than the project sponsor, provided any such source is approved for use in unconventional natural gas development, or hydrocarbon development, whichever is applicable, the project sponsor has an agreement for its use, and at least 10 days prior to use, the project sponsor registers such source with the commission on a form and in the manner prescribed by the commission.

(13) A project sponsor issued an approval by rule pursuant to paragraph (9) of this subdivision may also utilize other sources of water, including but not limited to, public water supply or wastewater discharge not otherwise associated with an approval issued by the commission pursuant to section 1806.4(a) of this Part or an approval by rule issued pursuant to paragraph (9) of this subdivision, provided such sources are first approved by the executive director. Any request for approval shall be submitted on a form and in the manner prescribed by the commission, shall satisfy the notice requirements set forth in section 1806.15 of this Part, and shall be subject to review pursuant to the standards set forth in sections 1806.20 -1806.25 of this Part.

(14) A project sponsor issued an approval by rule pursuant to paragraph (9) of this subdivision may utilize water obtained from a hydrocarbon water storage facility that is not otherwise associated with an approval issued by the commission pursuant to section 1806.4(a) of this Part, or an approval by rule issued pursuant to paragraph (9) of this subdivision, provided such sources are first approved by the executive director and are constructed and maintained in compliance with all standards and requirements of the applicable member jurisdiction. The owner or operator of any such facility shall submit a request for approval on a form and in the manner prescribed by the commission, shall satisfy the notice requirements set forth in section 1806.15 of this Part, and shall be subject to review pursuant to the standards set forth in sections 1806.20 -1806.25 of this Part.

(15) The project sponsor shall provide a copy of any registration or source approval issued pursuant to this section to the appropriate agency of the applicable member jurisdiction. The project sponsor shall record on a daily basis, and report quarterly on a form and in a manner prescribed by the commission, the quantity of water obtained from any source registered or approved hereunder. Any source approval issued hereunder shall also be subject to such monitoring and reporting requirements as may be contained in such approval or otherwise required by this Part.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 1806.22