Home > About DRBC > Regulations/Fees > Final Rule: Water Imports, Exports & Prohibition of HVHF Wastewater Discharges
Final Rule: Water Imports, Exports & Prohibition of HVHF Wastewater Discharges
Final Rule: Key Information

Title:

Regulatory Amendments concerning importations of water into and exportations of water from the Delaware River Basin and prohibiting the discharge of wastewater from high volume hydraulic fracturing (HVHF) and HVHF-related activities.

Action:

Final Rule, adopted December 7, 2022 (effective March 6, 2023)

Summary:

By Resolution No. 2022-04 on December 7, 2022, the DRBC approved amendments to its:

  • Comprehensive Plan and the Delaware River Basin Water Code concerning any importation of water and wastewater into and any exportation of water and wastewater from the Delaware River Basin;

  • Special Regulations – High Volume Hydraulic Fracturing prohibiting discharges to waters or land within the Basin of wastewater from HVHF and HVHF-related activities; and

  • Water Quality Regulations facilitating the implementation in state-issued permits of the prohibition on such discharges.

Key Information:

Please Note:

  • The text on this page and all html webpages on the DRBC website can be translated into multiple languages using the Google Translate widget found at the top right of each webpage.

  • Requests for translation of additional documents related to this rulemaking can be made by contacting translate@drbc.gov.
Final Rule: Findings & Determinations, Summary & Rule Text

After an extensive public rulemaking process, the Commission found and determined that:

  • 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. 

  • 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. 

  • 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. 

  • 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.  

Based on the above, the following DRBC Regulations are amended by the Final Rule:

Delaware River Basin Water Code:

Special Regulations: Part 440—High Volume Hydraulic Fracturing:

Water Quality Regulations:

Note: The final rule incorporates by reference into the Code of Federal Regulations at 18 CFR part 410 the Commission's Water Quality Regulations and the Delaware River Basin Water Code as amended by the Commission on December 7, 2022. 
Final Rule: Changes from Proposed Rule

Delaware River Basin Water Code:

  • The final language of Section 2.30.2 C.3 of the Water Code narrows the circumstances in which the Commission may approve an exportation of wastewater to instances in which the project sponsor demonstrates either:

    • that the wastewater is to be conveyed to a straddled or adjacent public wastewater collection system; or
    • that the wastewater may not lawfully be discharged to a public wastewater collection system and is being exported to a waste management facility that has all state and federal approvals required to lawfully receive it.

  • To clarify the changes to Section 2.30.2 C.3 of the Water Code, Section 2.30.1 of the final rule includes definitions of "Public wastewater collection system," "Adjacent public wastewater collection system" and "Straddled public wastewater collection system" that were not included in the proposed rule. The definitions are designed to parallel those previously proposed for "Public water system," "Adjacent public water system" and "Straddled public water system," respectively.

  • The final rule includes additional non-substantive changes in two sections.

    • Language in Section 2.30.1 A., defining "Adjacent public water system," was revised for greater stylistic consistency and clarity.

    • The wording of Section 2.30.2 C.2. was changed slightly to make clear that any exportation under that provision must be for the purpose of meeting public health and safety needs of the receiving system regardless of whether the exportation is intended to be temporary, short-term or in response to an emergency. 

Special Regulations: Part 440—High Volume Hydraulic Fracturing:

  • The final rule includes a new defined term, "Discharge of wastewater from HVHF and HVHF-related activities," to make the meaning of the rules more explicit.

  • The final rule also includes the addition of two words to section (1) of the definition of "Wastewater from HVHF and HVHF-related activities" in § 440.2 of the Special Regulations. The words "or" and "containing" are added to clarify that the definition refers to wastewater, brine, or sludge containing (as opposed to constituting) the various listed contaminants.

  • Additional non-substantive changes were made to conform proposed rule text in § 440.2 to Code of Federal Regulations standards.

Water Quality Regulations:

  • The final rule includes no changes from the amendments proposed to the Water Quality Regulations. 
Final Rule: Activities Prohibited & Activities Not Regulated by the Final Rule

One of the main components of the final rule prohibits the discharge of wastewater from HVHF and HVHF-related activities to waters or land within the Delaware River Basin.

Examples of activities that are prohibited by the final rule:

  • Discharge of HVHF wastewater to waters or land within the Basin;

  • Road spreading of HVHF wastewater;

  • Injection of HVHF wastewater into deep wells within the Basin;

  • Disposal of HVHF wastewater in Basin landfills;

  • Discharge of leachate from any landfill in the Basin that accepts HVHF waste after the effective date of the final regulations, including after treatment at an onsite or off-site leachate or wastewater treatment plant; and

  • Spills and leaks during transport, transfer or storage of HVHF wastewater within the Basin if not fully captured by a containment system in place throughout the duration of the spill or leak and thereafter promptly removed or remediated.

Examples of activities that are beyond the scope of the proposed and final rule follow. The final rule does not:

  • Regulate air emissions from HVHF activities;

  • Categorically prohibit the transfer of HVHF wastewater into the Basin when no resulting discharge is proposed;

  • Regulate the transportation and storage of HVHF materials, which are regulated under detailed state and federal programs focused on these activities;

  • Categorically prohibit the transfer of water from the Basin if it would be used to support HVHF (or any other specified activity). However, the rule does limit the circumstances under which transfers of water from the Basin will be considered and provides for an evaluation of such proposals based on factors designed to ensure no harm to the Basin's water resources or the health and safety of the Basin community; or

  • Prohibit road spreading of wastewater from conventional drilling activities, an activity not within the scope of DRBC's proposed rulemaking. The Commission will continue to coordinate with the Basin states to review the scientific evidence regarding harm to water resources caused by road spreading of conventional oil and gas production wastewater and may in the future consider whether additional regulation of the practice is needed in the Basin.
Proposed Rule: Key Info & Link to Full Archives

Background:

At its Special Public Business Meeting on February 25, 2021, a deadline of September 30, 2021, was set for the publication of draft proposed regulatory amendments regarding DRB water imports and exports.

At the DRBC's 3Q Business Meeting on September 9, 2021, the date by which DRBC will publish these proposed amendments was extended through November 30, 2021.

Publication of Proposed Rule:

The proposed amendments and implementing regulations were published on October 28, 2021.

Extensive opportunity for public input on this proposed rule was provided during the 124-day public comment period that took place from October 28, 2021, to February 28, 2022, and included five public hearings.

View complete information on the proposed rulemaking

Public Submissions on the Proposal:

During the comment period the Commission received a total of 2,461 comment submissions.

Enhanced Public Access:

  • The Notice of Proposed Rulemaking and proposed rule documents were officially translated into Spanish and posted online.

  • HTML pages of key proposed rulemaking information were created to allow for translation into multiple languages using the Google Translate widget.

  • Public hearing #5 included enhanced language access to include real-time English-to-Spanish and Spanish-to-English professional translation (on a pilot basis). Attendees could choose to participate in the virtual hearing in either English or Spanish.

  • Public hearing #5 also included toll-free phone numbers for individuals to use to participate in the public hearing via phone (on a pilot basis). This enhanced access was for those who do not have a computer or those who live in regions with limited internet access.
Related Resources

Contacts:

Learn More:

Stay Up to Date:

 

_________________________________________________
Notice Final Rule Adopted & Posted: December 7, 2022