(a) The operator of any diversion or
impoundment or any person who proposes to construct a diversion or impoundment
may petition the Commissioner at any time for an exemption or variance for any
such structure from the minimum flow and freshet release standards of these
regulations. The petition shall contain information sufficient to allow the
Commissioner to give adequate consideration to the effect, in terms of the
factors enumerated below, of the operation of the structure under such an
exemption or variance on the stocked river or stream system in question. The
Commissioner may require additional information prior to acting on such a
petition. Notice of the granting of an exemption or a variance shall be
published in a newspaper of general circulation in the municipality or
municipalities wherein the affected structure or river or stream system is
located.
In determining whether to grant an exemption or variance under
this section, upon receipt of a petition from the operator of an impoundment or
diversion, the Commissioner shall include, but is not limited to, consideration
of whether operation of the structure will:
(1) Prevent the maintenance of viable pools,
channels, or other water basins, or allow their undue depletion by normal
evaporation and aquifer absorption;
(2) Reduce oxygen content below minimal
levels, cause stagnation, or inhibit reproductive cycles (where that potential
exists);
(3) Prevent the
preservation, protection and safe maintenance of the river and stream stocking
program, the natural aquatic life contained in such waters (including
anadromous fish), and the natural or stocked wildlife dependent upon the flow
of such water, and the availability of such water for public recreational uses;
or
(4) Meet the needs and
requirements for public health, flood control, industry, public utilities,
water supply, water quality, electric power production, public safety,
agriculture, and other lawful uses of such waters.
Any such exemption or variance may be revoked, after a hearing
at which the operator shall have an opportunity to present evidence in support
of retention of the exemption or variance, if the Commissioner finds, upon
consideration of the factors enumerated above in this section, that there
exists a change in the conditions surrounding, or manner of operation of, the
diversion or impoundment, sufficient to materially and adversely alter the
circumstances under which such exemption or variance was granted.
(b) Upon the receipt of
a petition or request for the declaration of a water supply emergency from any
operator, from the chief executive officers of municipalities wherein the
affected structure or the impaired stocked river or stream system is located,
from the State Commissioner of Health, and Public Utilities Control Authority,
or upon the receipt of any information from a recognized authority that an
emergency exists or may be likely to exist in the immediate future, the
Commissioner shall immediately commence departmental proceedings to determine
the nature and extent of such water shortage, its causes and consequences, the
likelihood of its natural amelioration or termination, and the need for the
suspension or minimum flow standards with regard to particular impoundments or
diversions, or within an entire region, or within the entire State. The
Commissioner shall render his decision within three (3) working days of the
receipt of a water supply emergency petition.
In determining whether a water supply emergency exists or is
likely to exist in the immediate future, the Commissioner's considerations may
include, but are not limited to, the following factors:
(1) Runoff or rainfall statistics for the
watershed area for the period in question as compared with average runoff or
rainfall over preceding years for comparable periods;
(2) Impoundment levels or volume of diversion
as compared with levels or volumes at the same season in previous
years;
(3) Peculiar or unusual
demand situations or requirements to protect water quality;
(4) Peculiar or unusual water capture
problems; and
(5) Unusual health,
safety, power, or other crises imposing increased demands on water
supplies.
(c) The
Commissioner may modify the operation of minimum flow standards beyond the time
at which incoming supplies, or losses, or use patterns of water return to
normal, so that water supply deficits may be corrected.
(d) All declarations of water supply
emergencies shall contain:
(1) The structures
or stocked river or stream systems over which the operation of minimum flow
standards shall be suspended;
(2)
The duration of such modification, if for a definite term, or the conditions
upon which the modification shall terminate if for an indefinite term;
and
(3) Notice of the right of
aggrieved persons to a hearing to appeal such modification, provided that such
appeal, while pending, shall not enjoin the operation of such
modification.
(e) All
declarations of water supply emergencies shall be published in a newspaper of
general circulation in the municipality or municipalities wherein the emergency
exists, and a certified copy shall be sent to all operators of affected
impoundments and diversions, the chief executive officers of municipalities
wherein the affected structure or the impaired stocked river or stream system
is located, the State Commissioner of Health, and the Public Utilities Control
Authority.
