Titles of Regulations: 9VAC25-610. Groundwater Withdrawal Regulations (amending 9VAC25-610-10; adding 9VAC25-610-95).

9VAC25-910. General Permit for Use of Surficial Aquifer on the Eastern Shore (adding 9VAC25-910-10 through 9VAC25-910-90).

Statutory Authority: §§ 62.1-256 and 62.1-262.1 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: October 29, 2021.

Agency Contact: Scott Kudlas, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4456, or email scott.kudlas@deq.virginia.gov.

Basis: Section 62.1-256 of the Code of Virginia authorizes the State Water Control Board to adopt such regulations as it deems necessary to administer and enforce the provisions of this chapter. Section 62.1-262.1 of the Code of Virginia requires the board to adopt regulations to provide incentives for the withdrawal of groundwater from the surficial aquifer in the Eastern Shore Groundwater Management Area (ESGMA) rather than from the deep aquifer.

Chapter 755 of the 2019 Acts of Assembly requires the board to adopt regulations to provide incentives for the withdrawal of groundwater from the surficial aquifer in the ESGMA rather than from the deep aquifer.

Purpose: The purpose of this regulatory action is to provide incentives in the form of an accelerated permit process for the use of the surficial aquifer on the Eastern Shore for nonpotable purposes through the creation of a general permit. The adoption of a general permit protects the health, safety, or welfare of citizens by providing incentives for nonpotable water needs to be met by the surficial aquifer, thus conserving groundwater in the deep aquifers for potable needs.

Substance: Amendments to the Groundwater Withdrawal Regulations will establish the framework for the issuance of a general permit under the Groundwater Withdrawal Regulations. The new general permit regulation will include the establishment of permit terms, withdrawal limitations, and reporting requirements necessary to permit withdrawals.

Issues: The advantages to the public and the agency of creating a general permit is that it will be available to facilities with eligible withdrawals to withdraw groundwater in a manner that is protective of the confined aquifers in the ESGMA without the increased cost and more complex application process associated with issuing an individual permit. There are no known disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 755 of the 2019 Acts of Assembly,¹ the State Water Control Board (Board) proposes to create a general permit to incentivize the withdrawal of groundwater from the surficial aquifer in the Eastern Shore Groundwater Management Area rather than from the deep aquifer in that management area.

Background. In order for a person or entity to withdraw 300,000 gallons or more of groundwater per month from a Groundwater Management Area (GWMA), they must first obtain a groundwater withdrawal permit. There are two GWMAs in the state: the Eastern Virginia Groundwater Management Area, which includes all areas east of Interstate 95, and the Eastern Shore Groundwater Management Area (ESGMA), which includes Accomack and Northampton Counties. This regulatory action pertains specifically to the ESGMA.

According to the Department of Environmental Quality (DEQ), the groundwater withdrawals from the deep aquifer in the ESGMA have increased due to agricultural activities such as irrigation and due to modernization and cooling needs of poultry houses (e.g., misting of poultry to keep them cool). In particular, DEQ states that large poultry processing companies in the area (e.g., Purdue and Tysons) have been procuring poultry from growers closer to the processing plants in order to reduce their transportation costs.

Withdrawals from the deep aquifer is generally preferred by users over the surficial aquifer due to the consistency of water quality. Deep aquifers (also known as confined aquifers) are those in which an impermeable dirt or rock layer exists that prevents water from seeping into the aquifer from the ground surface located directly above. Instead, water seeps into confined aquifers from farther away where the impermeable layer does not exist. In contrast, surficial aquifers (also known as unconfined aquifers) are those into which water seeps from the ground surface directly above the aquifer. These differences produce higher quality water in the deep aquifers than the surficial aquifers, which can contain contaminants from the application of fertilizer, preservatives, other pollutants; and salt water mix to some extent. However, deep aquifers recharge much more slowly (hundreds to thousands of years depending on depth) than the surficial aquifers, which typically recharge annually based on rainfall. This has raised concerns locally that the deep aquifers may be depleted if more water is withdrawn from them than would be expected to be provided by recharge.

The General Assembly addressed these concerns with Chapter 755 of the 2019 Acts of Assembly, which mandated the board to adopt regulations to provide incentives for the withdrawal of groundwater from the surficial aquifer rather than from the deep aquifer in the ESGMA. According to the mandate, such incentives may include extended permit terms of as long as 20 years, an accelerated permit process, discounted permit fees, other subsidies, or other incentives.

In response, the board proposes to establish an accelerated permit process for the use of the surficial aquifer for nonpotable purposes through the creation of a general permit. Any individual, business, or other entity choosing to withdraw 300,000 gallons in a month or more of groundwater from the surficial aquifer in the ESGMA would be eligible for a general permit that would be valid for 15 years.

Estimated Benefits and Costs. Although there is no general permit currently for groundwater withdrawals, there are individual permits: 58 for agricultural uses, 24 for irrigation uses, 14 for municipal uses, eight permits for commercial uses, two for industrial uses, and one for fossil power (107 individual permits in total). The proposed rules would not directly affect the currently issued individual permits but would provide incentives to the permit holders to obtain a general permit rather than an individual permit when their individual permit expires, which also has a duration of 15 years.

The proposed general permit would provide a number of benefits. These include (1) reduced permit application fees; (2) the avoidance of detailed geotechnical studies as part of the individual permit application and not having to pay fees to publish public notices; (3) accelerated permit processing times; (4) the use of a water conservation and management checklist form for annual reporting of water conservation actions implemented instead of a customized conservation plan and reporting; and (5) simplified water withdrawal reporting to assess how much water is being withdrawn, including less frequent reporting (annually as opposed to quarterly).

Agricultural entities, which comprise the vast majority of the permit holders, are currently exempt from the individual permit fee and would also be exempt from the fee for the proposed general permit. Thus, the fee related impact would be on nonagricultural entities who would be subject to a $600 general permit fee compared to the current $9,000 individual permit fee. Although permit revenues would likely decrease, DEQ states that the permit revenues comprise a small portion of the program's budget (approximately 7% to 12% depending on the year from permit fees, compared to 88% to 93% from the general fund), and DEQ expects that staff time allocated to the processing of these general permits can be absorbed.

The cost of a geotechnical study required for an individual permit ranges from a one-time expense of $1,500 to $5,000 every 15 years. This cost could be avoided if a user chooses to apply for a general permit, provided no special circumstances exist as specified in the proposed language (such as withdrawals that require a well that is more than 80 feet deep). Similarly, publication of a notice in a newspaper at a cost of $200 to $300 every 15 years or whenever a significant modification to the permit is needed may be avoided with a general permit. Additionally, since the data and evaluation requirements of a general permit are lower in comparison to an individual permit, the permit processing times for a general permit are shorter. It is expected that 10 to 12 hours per year for most facilities would be needed to conduct meter readings and assess the conservation measures, fill out the form, and provide it to DEQ, which according to DEQ represents about a four-fold reduction in hours compared to an individual permit.

Depending on the geologic properties of the surficial aquifer and its water quality at the project location, it is possible that more than one well (generally no more than 80 feet deep) would need to be drilled in the surficial aquifer to achieve the same yield as a well drilled in the confined aquifer (generally about 300 feet deep). This may increase the drilling costs. However, since the drilling costs are typically based on each foot of depth, there is the potential to achieve the same yield with more wells of a shorter drilling depth. For example, if three wells that are each 80 feet in length produce the same yield as a 300 foot confined aquifer well, then drilling costs may actually decrease (240 feet vs 300 feet of drilling).

It must be noted, however, that even though there are uncertainties in the cost difference estimates between obtaining an individual permit versus a general permit, a general permit is optional and not mandatory. Thus, we can reliably infer that the perceived benefits of a general permit to the user would exceed its perceived costs if it is chosen. Accordingly, a decision regarding whether to renew an individual permit or instead obtain a general permit would depend on the magnitude of benefits the general permit would provide to the existing permit holders. Similarly, new applicants would likely weigh costs and benefits of obtaining a general vs. individual permit.

Since existing permit holders already have established wells for deep aquifers and are not required to change to the surficial aquifer, the incentives for them to use a general permit appear lower. Moreover, a well that is already built and in use represents a sunk cost to the existing permit holders because they would need to abandon an existing well if they choose to apply for a general permit and then build a new well. New applicants, on the other hand, would be able to decide between constructing a well for deep versus surficial uses. In addition, it is likely that there will be public opposition to new deep aquifer withdrawal permits for nonpublic water supply. As a result of these facts, the number of likely prospective users of a general permit is subject to great uncertainty and an estimate does not currently exist, but this regulatory change appears more likely to impact new users than existing ones.

As for the impact on entities other than the direct user, greater use of the surficial aquifer is expected to conserve groundwater supplies within confined aquifers, making them available for potable use over a longer period. If this action is successful in promoting greater use of the surficial aquifer, it would delay any new capital investments a locality may need to make to secure surface water due to declines in groundwater availability. The rate of potential saltwater intrusion in the confined aquifers is also expected to be reduced through greater use of the surficial aquifer. This action should not, however, have an effect on land subsidence (e.g. sinkholes), which is not considered a threat on the Eastern Shore due to its hydrogeology.

Businesses and Other Entities Affected. The proposed amendments would primarily affect prospective groundwater withdrawal permit applicants for non-potable uses. There is no reliable estimate on how many prospective users may choose this option, but some are expected to do so. The prospective users in the ESGMA may be particularly affected as they would have an option to reduce their groundwater withdrawal permit costs.

In addition, the Department of Conservation and Recreation, which has a state park in the area, may be able to meet their water needs through the use of this general permit, thereby saving them time and money as discussed above.

Small Businesses² Affected. If there are any, the prospective permit applicants are likely to be small businesses. However, the proposed general permit does not appear to adversely affect small businesses.

Localities³ Affected.⁴ ESGMA includes the Counties of Accomack and Northampton, which would particularly benefit from the proposed amendments to the extent prospective and nonpotable use applicants choose a general permit over an individual permit. These localities themselves may also prefer a general permit over an individual permit for their own nonpotable municipal uses saving them time and expense. Currently, Accomack County has one permit for municipal water supply. Northampton County as an entity does not have a permit, but the Town of Cape Charles, which is the county seat, has one municipal water supply permit. Furthermore, improved conservation of deep aquifers in their area would also be beneficial for people living in these two counties.

Projected Impact on Employment. The proposed amendments do not appear to directly affect total employment.

Effects on the Use and Value of Private Property. The potential cost savings through the proposed general permit may reduce costs of prospective nonpotable use permit applicants, which in turn could add to their asset values. Expected positive improvements in deep water conservation are not likely to directly impact real estate development costs in the short-term but may add to the value of land over the long term.

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¹https://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0755&191+ful+CHAP0755

²Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

³"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁴§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Environmental Quality has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Pursuant to Chapter 755 of the 2019 Acts of Assembly, the proposed amendments (i) adjust the existing groundwater withdrawal regulation to authorize the development of a new general permit and (ii) establish the new general permit regulation to manage the use of the surficial aquifer or water table aquifer for nonpotable activities to achieves greater long-term aquifer sustainability.

9VAC25-610-10. Definitions.

Unless a different meaning is required by the context, the following terms as used in this chapter shall have the following meanings:

"Act" means the Ground Water Management Act of 1992, Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the Code of Virginia.

"Adverse impact" means reductions in groundwater levels or changes in groundwater quality that limit the ability of any existing groundwater user lawfully withdrawing or authorized to withdraw groundwater at the time of permit or special exception issuance to continue to withdraw the quantity and quality of groundwater required by the existing use. Existing groundwater users include all those persons who have been granted a groundwater withdrawal permit subject to this chapter and all other persons who are excluded from permit requirements by 9VAC25-610-50.

"Agricultural use" means utilizing groundwater for the purpose of agricultural, silvicultural, horticultural, or aquacultural operations. Agricultural use includes withdrawals for turf farm operations, but does not include withdrawals for landscaping activities or turf installment and maintenance associated with landscaping activities.

"Applicant" means a person filing an application to initiate or enlarge a groundwater withdrawal in a groundwater management area.

"Area of impact" means the areal extent of each aquifer where more than one foot of drawdown is predicted to occur due to a proposed withdrawal.

"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.

"Board" means the State Water Control Board.

"Consumptive use" means the withdrawal of groundwater, without recycle of said waters to their source of origin.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality.

"Draft permit" means a prepared document indicating the board's tentative decision relative to a permit action.

"General permit" means a groundwater withdrawal permit authorizing the withdrawal of groundwater in a groundwater management area under specified conditions, including the size of the withdrawal or the aquifer or confining unit from which the withdrawal is to be made.

"Geophysical investigation" means any hydrogeologic evaluation to define the hydrogeologic framework of an area or determine the hydrogeologic properties of any aquifer or confining unit to the extent that withdrawals associated with such investigations do not result in unmitigated adverse impacts to existing groundwater users. Geophysical investigations include pump tests and aquifer tests.

"Groundwater" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir, or other body of surface water wholly or partially within the boundaries of this Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates, or otherwise occurs.

"Human consumption" means the use of water to support human survival and health, including drinking, bathing, showering, cooking, dishwashing, and maintaining hygiene.

"Instream beneficial uses" means uses including the protection of fish and wildlife resources and habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. The preservation of instream flows for purposes of the protection of navigation, maintenance of waste assimilation capacity, the protection of fish and wildlife resources and habitat, recreation, and cultural and aesthetic values is an instream beneficial use of Virginia's waters.

"Mitigate" means to take actions necessary to assure that all existing groundwater users at the time of issuance of a permit or special exception who experience adverse impacts continue to have access to the amount and quality of groundwater needed for existing uses.

"Permit" means a groundwater withdrawal permit issued under the Ground Water Management Act of 1992 permitting the withdrawal of a specified quantity of groundwater under specified conditions in a groundwater management area.

"Permittee" means a person that currently has an effective groundwater withdrawal permit issued under the Ground Water Act of 1992.

"Person" means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this Commonwealth or any other state or country.

"Practicable" means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

"Private well" means, as defined in § 32.1-176.3 of the Code of Virginia, any water well constructed for a person on land that is owned or leased by that person and is usually intended for household, groundwater source heat pump, agricultural use, industrial use, or other nonpublic water well.

"Public hearing" means a fact finding proceeding held to afford interested persons an opportunity to submit factual data, views, and comments to the board pursuant to § 62.1-44.15:02 of the Code of Virginia.

"Salt water intrusion" means the encroachment of saline waters in any aquifer that creates adverse impacts to existing groundwater users or is counter to the public interest.

"Special exception" means a document issued by the board for withdrawal of groundwater in unusual situations where requiring the user to obtain a groundwater withdrawal permit would be contrary to the purpose of the Ground Water Management Act of 1992. Special exceptions allow the withdrawal of a specified quantity of groundwater under specified conditions in a groundwater management area.

"Supplemental drought relief well" means a well permitted to withdraw a specified amount of groundwater to meet human consumption needs during declared drought conditions after mandatory water use restrictions have been implemented.

"Surface water" means all state waters that are not groundwater as groundwater is defined in § 62.1-255 of the Code of Virginia.

"Surface water and groundwater conjunctive use system" means an integrated water supply system wherein surface water is the primary source and groundwater is a supplemental source that is used to augment the surface water source when the surface water source is not able to produce the amount of water necessary to support the annual water demands of the system.

"Surficial aquifer" means the upper surface of a zone of saturation, where the body of groundwater is not confined by an overlying impermeable zone.

"Water well systems provider" means any individual who is certified by the Board for Contractors in accordance with § 54.1-1128 et seq. of the Code of Virginia and who is engaged in drilling, installation, maintenance, or repair of water wells, water well pumps, ground source heat exchangers, and other equipment associated with the construction, removal, or repair of water wells, water well systems, and ground source heat pump exchangers to the point of connection to the ground source heat pump.

"Well" means any artificial opening or artificially altered natural opening, however made, by which groundwater is sought or through which groundwater flows under natural pressure or is intended to be withdrawn.

"Withdrawal system" means (i) one or more wells or withdrawal points located on the same or contiguous properties under common ownership for which the withdrawal is applied to the same beneficial use or (ii) two or more connected wells or withdrawal points which are under common ownership but are not necessarily located on contiguous properties.

9VAC25-610-95. General permits.

A. The board may issue a general permit by regulation for withdrawals of groundwater within a groundwater management area as it deems appropriate in accordance with the following:

1. A general permit may be written to cover the following:

a. Withdrawals of a certain size;

b. Withdrawals from a specific aquifer or confining unit; or

c. Other categories of withdrawals deemed appropriate by the board.

2. A general permit must clearly identify the applicable conditions of this chapter for each category or subcategory of withdrawals covered by the permit.

3. The general permit may exclude specified withdrawals or areas from coverage.

B. When the board determines on a case-by-case basis that concerns for the aquifer, water quality, or the ecosystem services that depend on the groundwater so indicate, the board may require individual applications and individual permits rather than approving coverage under a general permit regulation. Cases where an individual permit may be required include the following:

1. The wells of two or more groundwater users within the area are interfering or may reasonably be expected to interfere substantially with one another;

2. The available groundwater or surface water supply that rely on surficial aquifer input has been or may be adversely impacted or instream beneficial uses may be impacted;

3. The groundwater or surface water in the area has been or may become polluted. Such pollution includes any alteration of the physical, chemical, or biological properties of groundwater or surface waters that has a harmful or detrimental effect on the quality or quantity of such waters;

4. The applicant or permittee is not in compliance with the conditions of the general permit regulation or coverage; or

5. An applicant or permittee no longer qualifies for coverage under the general permit.

C. General permit coverage may be revoked from a permittee for any of the reasons set forth in 9VAC25-610-300 A subject to appropriate opportunity for a hearing.

D. Activities authorized under a general permit and general permit regulation shall be authorized for the fixed term stated in the applicable general permit and general permit regulation.

E. When an individual permit is issued to a permittee, the applicability of general permit coverage to the individual permittee is automatically terminated on the effective date of the groundwater withdrawal individual permit.

F. When a groundwater withdrawal general permit regulation is issued that applies to a permittee that is already covered by an individual permit, that person may request exclusion from the provisions of the general permit regulation and subsequent coverage under an individual permit.

G. General permits may be issued, modified, revoked and reissued, or terminated in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

Chapter 910

General Permit for Use of Surficial Aquifer on the Eastern Shore

9VAC25-910-10. Definitions.

The words and terms used in this chapter shall have the meanings defined in the Ground Water Management Act of 1992 (§ 62.1-44.2 et seq. of the Code of Virginia) and Groundwater Withdrawal Regulations (9VAC25-610), except that for the purposes of this chapter, the following words and terms shall have the following meanings unless the context clearly indicates otherwise:

"Adverse impact" means reductions in groundwater levels or changes in groundwater quality that limit the ability of any existing groundwater user lawfully withdrawing or authorized to withdraw groundwater at the time of permit or special exception issuance to continue to withdraw the quantity and quality of groundwater required by the existing use. Existing groundwater users include all those persons who have been granted a groundwater withdrawal permit subject to this chapter and all other persons who are excluded from permit requirements by 9VAC25-610-50.

"Applicant" means a person filing an application to initiate or enlarge a groundwater withdrawal in a groundwater management area.

"Area of impact" means the areal extent of each aquifer where more than one foot of drawdown is predicted to occur due to a proposed withdrawal.

"Beneficial use" includes domestic (including public water supply), agricultural, commercial, and industrial uses.

"Department" or "DEQ" means the Department of Environmental Quality.

"Eastern Shore Groundwater Management Area" means the groundwater management area declared by the board encompassing the Counties of Accomack and Northampton.

"Groundwater" means any water, except capillary moisture, beneath the land surface in the zone of saturation or beneath the bed of any stream, lake, reservoir, or other body of surface water wholly or partially within the boundaries of this Commonwealth, whatever the subsurface geologic structure in which such water stands, flows, percolates, or otherwise occurs.

"Mitigate" means to take actions necessary to assure that all existing groundwater users at the time of issuance of a permit or special exception who experience adverse impacts continue to have access to the amount and quality of groundwater needed for existing uses.

"Permit" means a groundwater withdrawal permit issued under the Ground Water Management Act of 1992 permitting the withdrawal of a specified quantity of groundwater under specified conditions in a groundwater management area.

"Permittee" means a person that currently has an effective groundwater withdrawal permit, or coverage under a general permit, issued under the Ground Water Act of 1992.

"Surface water and groundwater conjunctive use system" means an integrated water supply system wherein surface water is the primary source and groundwater is a supplemental source that is used to augment the surface water source when the surface water source is not able to produce the amount of water necessary to support the annual water demands of the system.

9VAC25-910-20. Information requirements.

Pursuant to 9VAC25-610-380, the board may request (i) such plans, specifications, and other pertinent information as may be necessary to determine the effect of an applicant's groundwater withdrawal; and (ii) such other information as may be necessary to accomplish the purposes of this chapter. Any owner, permittee, or person applying for a general permit coverage shall provide the information requested by the board.

9VAC25-910-30. Purpose.

The purpose of this chapter is to establish a general permit for the use of the surficial aquifer in the Eastern Shore Groundwater Management Area under the provisions of 9VAC25-610. Applications for coverage under this general permit shall be processed for approval or denial by the board. Coverage or application denial by the board shall constitute the general permit action and shall follow all provisions in the Ground Water Management Act of 1992 (§ 62.1-254 et seq. of the Code of Virginia), except for the public comment and participation provisions, from which each general permit action is exempt.

9VAC25-910-40. Delegation of authority.

The director or an authorized representative may perform any act of the board provided under this chapter, except as limited by § 62.1-44.14 of the Code of Virginia.

9VAC25-910-50. Effective date of the permit.

The general permit in 9VAC25-910-90 becomes effective on (insert the effective date of the regulation) and expires on (insert the date 15 years after effective date of the regulation). Any coverage that is granted pursuant to 9VAC25-910-90 shall remain in full force and effect until 11:59 p.m. on (insert the date 15 years after the effective date of the regulation) unless the general permit coverage is terminated or revoked on or before that date.

9VAC25-910-60. Authorization to withdraw groundwater from the surficial aquifer of the Eastern Shore.

A. A person granted coverage under the general permit may withdraw groundwater from the surficial aquifer of the Eastern Shore Groundwater Management Area, as defined in 9VAC25-910-10, provided that:

1. The applicant submits an application in accordance with 9VAC25-910-80;

2. The applicant remits any required permit application fee;

3. The applicant receives general permit coverage from the Department of Environmental Quality under 9VAC25-910-90 and complies with the limitations and other requirements of the general permit, the general permit coverage letter, and the Ground Water Management Act of 1992 and attendant regulations; and

4. The applicant has not been required to obtain an individual permit under 9VAC25-610 for the proposed project withdrawals. An applicant that is eligible for general permit coverage may, at the applicant's discretion, seek an individual permit instead of coverage under this general permit.

B. Application may be made at any time for an individual permit in accordance with 9VAC25-610.

C. Coverage under this general permit does not relieve the permittee of the responsibility to comply with other applicable federal, state, or local statutes, ordinances, or regulations.

D. The activity to withdraw water shall not have been prohibited by state law or regulations, nor shall it contravene applicable Groundwater Withdrawal Regulations.

E. Coverage under this general permit is not required if the activity is excluded from permitting in accordance with 9VAC25-610-50.

9VAC25-910-70. Reasons to deny coverage.

A. The board shall deny application for coverage under this general permit to:

1. An activity outside the Eastern Shore Groundwater Management Area.

2. An activity in an aquifer other than the surficial aquifer of the Eastern Shore Groundwater Management Area.

3. A well with a maximum depth greater than 80 feet below land surface, unless the applicant provides geophysical logs with the application that show the maximum depth of the well is constructed within the surficial aquifer of the Eastern Shore Groundwater Management Area, as determined by department review. Wells with a maximum depth less than or equal to 80 feet below land surface do not require submission of geophysical logs.

4. An activity that causes, may reasonably be expected to cause, or may contribute to causing more than minimal water level declines in the underlying confined aquifer system or degradation in water quality, stream or wetland hydrology, or other instream beneficial uses.

B. The board may require an individual permit in accordance with 9VAC25-610-95 B rather than granting coverage under this general permit.

9VAC25-910-80. Application.

A. The applicant shall file a complete application in accordance with this section for coverage under this general permit for use of the surficial aquifer in the Eastern Shore Groundwater Management Area.

B. A complete application for general permit coverage, at a minimum, consists of the following information, if applicable to the project:

1. The permit fee as required by Fees for Permits and Certificates (9VAC25-20);

2. A groundwater withdrawal permit application completed in its entirety with all maps, attachments, and addenda that may be required. Application forms shall be submitted in a format specified by the board. The application forms are available from the Department of Environmental Quality;

3. A signature as described in 9VAC25-610-150;

4. A completed well construction report for all existing wells associated with the application submitted on the Water Well Completion Report, Form GW2;

5. For all proposed wells, the well name, proposed well depth, screen intervals, pumping rate, and latitude and longitude;

6. Locations of all existing and proposed wells associated with the application shown on a USGS 7.5-minute topographic map or equivalent computer generated map. The map shall be of sufficient detail such that all wells may be easily located for site inspection. The applicant shall provide the latitude and longitude coordinates in a datum specified by the department for each existing and proposed well. The map must show the outline of the property and the location of each of its existing and proposed wells and must include all springs, rivers and other surface water bodies;

7. Information on surface water and groundwater conjunctive use systems as described in 9VAC25-610-104 if applicable;

8. Notification from the local governing body in which the withdrawal is to occur that the location and operation of the withdrawing facility is in compliance with all ordinances adopted pursuant to Chapter 22 (§ 15.2-2200 et seq.) of Title 15.2 of the Code of Virginia. If the governing body fails to respond to the applicant's request for certification within 45 calendar days of receipt of the written request, the location and operation of the proposed facility shall be deemed to comply with the provisions of such ordinances for the purposes of this chapter. The applicant shall document the local governing body's receipt of the request for certification through the use of certified mail or other means that establishes proof of delivery;

9. Documentation justifying volume of groundwater withdrawal requested as described in the groundwater withdrawal application provided in accordance with subdivision B 2 of this section; and

10. Where existing or proposed wells are greater than 80 feet below land surface, a complete suite of geophysical logs (16"/64" Normal, Single Point, Self Potential, Lateral, and Natural Gamma at a scale of 20 feet per inch) shall be obtained from boreholes at the locations and depths approved by the department. At least four months prior to the scheduled geophysical logging, the permittee shall notify the department of the drilling timetable to receive further guidance needed on performing the geophysical logging and to allow scheduling of department staff to make a site visit during the drilling of the borehole and the geophysical logging. Geophysical log data collected without the oversight of the department will not be accepted by the department.

C. The board may waive the requirement for information listed in subsection B of this section to be submitted if it has access to substantially identical information that remains accurate and relevant to the permit application.

D. If an application is not accepted as complete by the board under the requirements of subsection B of this section, the board will require the submission of additional information pursuant to 9VAC25-610-98.

E. An incomplete permit application for coverage under this general permit may be administratively withdrawn from processing by the board for failure to provide the required information after 60 calendar days from the date of the latest written information request made by the board. An applicant may request a suspension of application review by the board. A submission by the applicant making such a request shall not preclude the board from administratively withdrawing an incomplete application. Resubmittal of a permit application for the same or similar project after the time that the original permit application was administratively withdrawn, shall require submittal of an additional permit application fee.

9VAC25-910-90. General permit.

An owner whose application is accepted by the board will receive coverage under the following permit and shall comply with the requirements in the permit and be subject to all requirements of 9VAC25-610.

GENERAL PERMIT FOR GROUNDWATER WITHDRAWALS FROM THE SURFICIAL AQUIFER OF THE EASTERN SHORE GROUNDWATER MANAGEMENT AREA.

Effective date: (insert the effective date of the regulation).

Expiration date: (insert the date 15 years after the effective date of the regulation).

Pursuant to § 62.1-256 of the Ground Water Management Act of 1992 (§ 62.1-254 et seq. of the Code of Virginia) and Groundwater Withdrawal Regulations (9VAC25-610), the State Water Control Board hereby authorizes the permittee to withdraw and use groundwater in accordance with this permit.

The authorized withdrawals shall be in accordance with the information submitted with the application, this cover page, Part I – Operating Conditions, and Part II – Conditions Applicable to All Groundwater Withdrawal Permits, as set forth in this general permit.

PART I

Operating Conditions

A. Authorized withdrawal. The withdrawal of groundwater shall be limited to the wells identified in the groundwater withdrawal application submitted in accordance with 9VAC25-910-80.

B. Reporting.

1. Water withdrawn from each well shall be recorded monthly at the end of each month, and reported to the department annually, in paper or electronic format, on a form provided by the department, by July 10 for the respective previous 12 months. Records of water use shall be maintained by the permittee in accordance with Part II F 1 through F 4 of this general permit.

2. The permittee shall report any amount in excess of the permitted withdrawal limit by the fifth day of the month following the month when such a withdrawal occurred. Failure to report may result in compliance or enforcement activities.

C. Water conservation and management plan.

1. The permittee shall conduct an annual water audit quantifying the flows of the water in the system to understand its usage, reduce losses, and improve water conservation. The audit shall include:

a. Documentation of an annual review of the amount of water used compared with the expected need of the system to ensure that the water system uses the minimum amount of water necessary;

b. A list of any new water saving equipment, procedures, or improvements installed or water saving processes implemented during the previous year;

c. Documentation of implementation and evaluation of a leak detection and repair process; including documented quarterly visual monitoring during withdrawal periods where the permittee will locate and correct system leaks; and

d. A Groundwater Withdrawal Water Conservation and Management Audit Form, completed in its entirety, provided by the department.

2. Results of the annual audit shall be maintained onsite and available to the department upon request.

3. When a drought emergency is declared by the Commonwealth of Virginia in the Eastern Shore Drought Evaluation Region or in accordance with the county or locality drought management ordinance, the permittee shall implement either the provisions directed by the Commonwealth or the drought management ordinance, whichever is the most restrictive. The permittee shall be responsible for determining when drought emergencies are declared. The permittee shall retain records documenting that mandatory conservation measures were implemented during declared drought emergencies.

D. Mitigation plan. In cases where the area of impact does not remain on the property owned by the applicant or existing groundwater withdrawers will be included in the area of impact, the applicant shall provide and implement a plan to mitigate all adverse impacts on existing groundwater users. Approvable mitigation plans shall, at a minimum, contain the following features and implementation of the mitigation plan shall be included as enforceable permit conditions:

1. The rebuttable presumption that water level declines that cause adverse impacts to existing wells within the area of impact are due to the proposed withdrawal;

2. A commitment by the applicant to mitigate undisputed adverse impacts due to the proposed withdrawal in a timely fashion;

3. A speedy, nonexclusive, low-cost process to fairly resolve disputed claims for mitigation between the applicant and any claimant; and

4. The requirement that the claimant provide documentation that the claimant is the owner of the well; documentation that the well was constructed and operated prior to the initiation of the applicant's withdrawal; the depth of the well, the pump, and screens and any other construction information that the claimant possesses; the location of the well with enough specificity that it can be located in the field; the historic yield of the well, if available; historic water levels for the well, if available; and the reasons the claimant believes that the applicant's withdrawals have caused an adverse impact on the well.

E. Property rights. The issuance of coverage under this general permit neither conveys property rights in either real or personal property or exclusive privileges nor authorizes injury to private property, an invasion of personal property rights, or an infringement of federal, state, or local laws or regulations. The fact that an owner obtains coverage under this general permit shall not constitute a defense in a civil action involving private rights.

F. Well tags. Each well that is included in the coverage under this general permit shall have affixed to the well casing, in a prominent place, a permanent well identification plate that records, at a minimum, the DEQ well identification number, the groundwater withdrawal permit number, the total depth of the well, and the screened intervals in the well. Such well identification plates shall be in a format specified by the board and are available from the department.

G. Well abandonment. The permittee shall permanently abandon out-of-service wells in accordance with the Virginia Department of Health regulations and shall submit documentation to the Department of Environmental Quality within 30 calendar days of abandonment. At least two weeks prior to the scheduled abandonment, the permittee shall notify the department of the scheduled abandonment date.

PART II

Conditions Applicable to All Groundwater Withdrawal Permits

A. Duty to comply. The permittee shall comply with all conditions of the permit. Nothing in this permit shall be construed to relieve the permit holder of the duty to comply with all applicable federal and state statutes, regulations, and prohibitions. Any permit violation is a violation of the law and is grounds for enforcement action, permit termination, revocation, modification, or denial of a permit application.

B. Duty to cease or confine activity. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the activity for which a permit has been granted in order to maintain compliance with the conditions of the permit.

C. Duty to mitigate. The permittee shall take all reasonable steps to avoid all adverse impacts that may result from this withdrawal as defined in 9VAC25-610-10 and to provide mitigation of the adverse impact in accordance with Part I D of this general permit.

D. Inspection, entry, and information requests. Upon presentation of credentials, the permittee shall allow the board, the department, or any duly authorized agent of the board, at reasonable times and under reasonable circumstances, (i) to enter upon the permittee's property, public or private; (ii) to have access to, inspect, and copy any records that must be kept as part of the permit conditions; and (iii) to inspect any facilities, well, water supply system, operations, or practices (including sampling, monitoring and withdrawal) that are regulated or required under the permit. For the purpose of this section, the time for inspection shall be deemed reasonable during regular business hours. Nothing contained in this general permit shall make an inspection time unreasonable during an emergency.

E. Duty to provide information. The permittee shall furnish to the board or department, within a reasonable time, information that the board may request to determine whether cause exists for modifying, revoking, reissuing, or terminating the permit or to determine compliance with the permit. The permittee shall also furnish to the board or department, upon request, copies of records required to be kept by regulation or this permit.

F. Water withdrawal volume records requirements.

1. The permittee shall maintain a copy of the permit on-site and shall make the permit available upon request.

2. Measurements taken for the purpose of monitoring shall be representative of the metered activity.

3. The permittee shall retain records of all metering information, including (i) all calibration and maintenance records, (ii) copies of all reports required by the permit, and (iii) records of all data used to complete the application for the permit for a period of at least three years from the date of the expiration of coverage under this general permit. This period may be extended by request of the board at any time.

4. Records of metering information shall include, as appropriate:

a. The date, exact place and time of measurements;

b. The names of the individuals that performed measurements;

c. The date the measurements were performed; and

d. The results of the measurements.

G. Water withdrawal volume metering and equipment requirements. Each well or impoundment or impoundment system shall have an in-line totalizing flow meter to read gallons, cubic feet, or cubic meters installed prior to beginning the permitted use. Meters shall produce volume determinations within plus or minus 10% of actual flows.

1. A defective meter or other device shall be repaired or replaced within 30 business days of discovery.

2. A defective meter is not grounds for not reporting withdrawals. During any period when a meter is defective, generally accepted engineering methods shall be used to estimate withdrawals. The period during which the meter was defective must be clearly identified in the groundwater withdrawal report required by Part I B of this general permit. An alternative method for determining flow may be approved by the board on a case-by-case basis.

H. Well construction. At least 30 calendar days prior to the scheduled construction of any well, the permittee shall notify the department of the construction timetable and shall receive prior approval of the well location and acquire the DEQ well number. All wells shall be constructed in accordance with the following requirements.

1. A well site approval letter or well construction permit shall be obtained from the Virginia Department of Health prior to construction of the well.

2. For wells constructed with a maximum depth greater than 80 feet, a complete suite of geophysical logs (16"/64" Normal, Single Point, Self-Potential, Lateral, and Natural Gamma) shall be completed for the well and submitted to the department along with the corresponding completion report.

3. The permittee's determination of the surficial aquifer depth shall be submitted to the department for review and approval, or approved on site by the department's geologist, prior to installation of any pump.

4. A completed Uniform Water Well Completion Report, Form GW-2 and any additional water well construction documents shall be submitted to the department within 30 calendar days of the completion of any well and prior to the initiation of any withdrawal from the well. The assigned DEQ well number shall be included on all well documents.

I. Transfer of permits.

1. Permits are not transferable to any person except after notice to the department.

2. Coverage under this permit may be automatically transferred to a new permittee if:

a. The current permittee notifies the department within 30 business days of the proposed transfer of the title to the facility or property, unless permission for a later date has been granted by the board;

b. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and

c. The board does not notify the existing permittee and the proposed new permittee of its intent to deny the new permittee coverage under the permit. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in Part II I 2 b of this general permit.

J. Notice of planned change. The permittee shall give notice to the department at least 30 business days prior to any planned alterations or additions to the permitted water withdrawal system.

K. Revocation and termination of coverage.

1. General permit coverage may be revoked in accordance with 9VAC25-610-290 and 9VAC25-610-300.

2. The permittee may terminate coverage under this general permit by filing a complete notice of termination with the department. The notice of termination may be filed after one or more of the following conditions have been met:

a. Operations have ceased at the facility and there are no longer withdrawals from the surficial aquifer.

b. A new owner has assumed responsibility for the facility. A notice of termination does not have to be submitted if a Change of Ownership Agreement Form has been submitted.

c. All groundwater withdrawals associated have been covered by an individual groundwater withdrawal permit.

d. Termination of coverage is being requested for another reason, provided the board agrees that coverage under this general permit is no longer needed.

3. The notice of termination shall contain the following information:

a. The owner's name, mailing address, telephone number, and email address, if available;

b. The facility name and location;

c. The general permit number;

d. A completed Termination Agreement Form obtained from the department; and

e. The basis for submitting the notice of termination, including:

(1) A statement indicating that a new owner has assumed responsibility for the facility;

(2) A statement indicating that operations have ceased at the facility, and there are no longer groundwater withdrawals from the surficial aquifer;

(3) A statement indicating that all groundwater withdrawals have been covered by an individual Groundwater Withdrawal permit; or

(4) A statement indicating that termination of coverage is being requested for another reason (state the reason); and

(5) The following certification: "I certify under penalty of law that all groundwater withdrawals from the surficial aquifer at the identified facility that are authorized by this general permit have been eliminated, or covered under a groundwater withdrawal individual permit, or that I am no longer the owner of the facility, or permit coverage should be terminated for another reason listed above. I understand that by submitting this notice of termination, that I am no longer authorized to withdraw groundwater in accordance with the general permit, and that withdrawing groundwater is unlawful where the withdrawal is not authorized by a groundwater withdrawal permit or otherwise excluded from permitting. I also understand that the submittal of this notice of termination does not release an owner from liability for any violations of this permit or the Virginia Groundwater Management Act."

4. The notice of termination shall be signed in accordance with 9VAC25-610-150.

L. Continuation of coverage. Permit coverage shall expire at the end of its term. However, expiring permit coverages are automatically continued if the owner has submitted a complete application at least 90 calendar days prior to the expiration date of the permit, or a later submittal established by the board, which cannot extend beyond the expiration date of the original permit. The permittee is authorized to continue to withdraw until such time as the board either:

1. Issues coverage to the owner under this general permit; or

2. Notifies the owner that the withdrawal is not eligible for coverage under this general permit.

M. Duty to reapply. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee shall apply for and obtain coverage under a new permit. All permittees with currently effective permit coverage shall submit a new application at least 90 calendar days before the expiration date of the existing permit, unless permission for a later date has been granted in writing by the board. The board shall not grant permission for application to be submitted later than the expiration date of the existing permit.

FORMS (9VAC25-910)

Application for an Eastern Shore Surficial Aquifer Groundwater Withdrawal General Permit, DEQ Form GWP-ESGP Application (eff. 9/2020)

Eastern Shore Surficial Aquifer General Permit Annual Groundwater Withdrawal Report, DEQ Form GWP-ESGP-Reporting (eff. 12/2020)

Eastern Shore Surficial Aquifer General Permit Groundwater Withdrawal Water Conservation and Management Audit Form, DEQ Form GWP-ESGP-WCMP (eff. 12/2020)

Groundwater Withdrawal Permit Uncontested Termination Agreement Form, DEQ Form GWP-Termination (rev. 12/2020)

Local Government Ordinance Form, DEQ Form GWP-LGOF (rev. 8/2019)

Uniform Water Well Completion Report, Form GW-2 (rev. 8/2016)