News + Events
Proposed Changes to Virginia’s Groundwater Regulations
July 1, 2009
John W. Daniel II
James "Jim" E. Ryan, Jr.
George A. Somerville
The State Water Control Board and the Department of Environmental Quality (DEQ) have announced a pair of proposals that would change the regulation of groundwater withdrawals in eastern Virginia, and it appears that each of the proposed changes would work a substantial revision of the existing regulatory scheme.
The first of the proposed changes appears quite straightforward: it would expand the Eastern Virginia Ground Water Management Area to include the Counties of Caroline, King and Queen, Gloucester, Mathews, Middlesex, Essex, King George, Westmoreland, Richmond, Lancaster and Northumberland; parts of Spotsylvania, Stafford, Prince William, Fairfax and Arlington Counties; and the City of Alexandria. This Ground Water Management Area presently includes every county and city south of the York River and its tributaries and east of I‑95, except Gloucester, Mathews, Middlesex Counties. The proposed expansion would bring these three counties on the edge of the Chesapeake Bay, and the corresponding area north of the York and its tributaries, into the regulated area. The boundaries of the Eastern Shore Ground Water Management Area would remain unchanged.
The reasons for proposing the expansion are stated in an Agency Background Document (published here) as follows: “Ground water levels in the undesignated portion of Virginia’s coastal plain are continuing to decline. Impacts from ground water withdrawals are propagating along the fall line into the undesignated portion of Virginia’s coastal plain and have the potential to interfere with wells in these areas without assigned mitigation responsibilities. Given current ground water declines, the entire coastal plain aquifer system must be managed to maintain a sustainable future supply of ground water.”
The second proposed change is both more ambiguous and apparently even more ambitious: the Board and DEQ propose “to consider amending the [Ground Water Withdrawal Regulation, 9 VAC 25‑610] to address the increasing demand on limited groundwater resources, changes to the administrative review process, and regulatory changes necessitated by new information on the coastal plain aquifer system.” Agency Background Document here. The agencies’ reasons for proposing this action echo and elaborate on their explanation of reasons for proposing to expand the Ground Water Management Area, and the explanation includes a series of danger signals:
- Ground water levels in parts of the coastal plain are declining to the point that they are nearing aquifer tops, in a number of localities along the fall line, and generally throughout the rest of the coastal plain.
- As a result, “many existing permitted users are unable to renew their withdrawal permits at permitted amounts when they exceed current use.” In other words, DEQ is still issuing ground water withdrawal permits, but it is limiting permitted withdrawals to existing levels instead of renewing permits at previously permitted levels if they are higher than actual uses.
- “New or expanded applications are a challenge to permit.”
- Continued withdrawals at existing rates could “impac[t] the availability of ground water for existing users and severely compromis[e] growth and development potential throughout the Management Area.
Even more ominous, the Board is preparing “to address for which users and for what purposes this finite resource should be allocated” and “to address what constitutes an adequate margin of safety and what technical criteria are defensible for determining whether or not to issue a permit and for what amounts.” All of this appears to signal a readiness to exercise a significantly broader set of regulatory authorities than historically have been observed in the two designated ground water management areas. The agencies’ determination to proceed is signaled by their description of alternatives to the proposed action: allowing the status quo to continue, they say, “would result in unsustainable ground water declines and an inability to re-issue existing withdrawal permits.”
The Agency Background Document provides only a limited description of specific actions that are under consideration. Those include (1) evaluating “the appropriateness of the current application of 80% drawdown criterion” (which is used in evaluating new withdrawal applications; permits generally are not granted unless “technical evaluation demonstrates that the proposed withdrawal in combination with all existing lawful withdrawals will not lower water levels, in any confined aquifer that the withdrawal impacts, below a point that represents 80% of the distance between the historical prepumping water levels in the aquifer and the top of the aquifer,” 9VAC25-610-110.D.3.h); (2) evaluating “the appropriateness of prohibiting the use of ground water for nonagricultural irrigation, including whether the use of reclaimed water should be required for any nonagricultural irrigation associated with a facility that has a ground water withdrawal permit”; (3) evaluating “the appropriateness of limiting ground water withdrawal permits for agricultural irrigation to withdrawals from the water table aquifer”; and (4) perhaps most ominous of all, evaluating “the appropriateness of limiting ground water withdrawal permits to essential (as compared to beneficial) uses, including whether to define essential use.”
DEQ sources confirm that the second proposal is much more open-ended; the agencies do not have a clear agenda for the Ground Water Withdrawal Regulation amendment. They are interested in knowing what is working and what is not working, from the perspective of the regulated community. They are, however, quite serious about taking appropriate steps to address an increasingly dangerous groundwater situation in eastern Virginia.
Both proposals will be formally announced in the
Virginia Register of Regulations on July 6, 2009, opening comment periods that currently are scheduled to close on August 19, 2009. Public meetings will be held in Eastville (Northampton County) on August 10, James City County on August 13, and Spotsylvania County on August 18. (None have been scheduled, however, anywhere north of the Rappahannock River.) The Agency Background Documents state that the Board “is using the participatory approach to develop a proposal” and invites persons interested in assisting in the development of a proposal to volunteer for service on the advisory committee, whose function will be “to develop recommended regulation amendments for Department consideration through the collaborative approach of regulatory negotiation and consensus.”
For further information about or assistance regarding this regulatory action, please contact George Somerville, John Daniel, Jim Ryan or John Byrum, members of Troutman Sanders’ Environmental and Natural Resources Practice Group.