TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Final Regulation

Titles of Regulations: 9VAC25-210. Virginia Water Protection Permit Program Regulation (adding 9VAC25-210-315).

9VAC25-610. Groundwater Withdrawal Regulations (amending 9VAC25-610-110).

Statutory Authority: §§ 62.1-256 and 62.1-44.15 of the Code of Virginia.

Effective Date: September 25, 2024.

Agency Contact: Eric Seavey, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 754-6250, or email eric.seavey@deq.virginia.gov.

Summary:

Chapter 251 of the 2024 Acts of Assembly revises § 62.1-44.15:55 of the Code of Virginia, authorizing the board to utilize and incorporate comprehensive groundwater, surface water, and aquifer data in surface water and groundwater permit decisions. Such data may include information relating to water levels, flow rates, and water quality. The amendments conform regulation to statute.

9VAC25-210-315. Use of data in permit decision for surface water withdrawals.

The department is authorized to utilize and incorporate comprehensive groundwater, surface water, and aquifer data in permit decisions. Such data may include information relating to water levels, flow rates, and water quality.

9VAC25-610-110. Evaluation criteria for permit applications.

A. The department shall not issue any permit for more groundwater than will be applied to the proposed beneficial use.

B. The department shall issue groundwater withdrawal permits to persons withdrawing groundwater or who have rights to withdraw groundwater prior to July 1, 1992, in the Eastern Virginia or Eastern Shore Groundwater Management Area and not excluded from requirements of this chapter by 9VAC25-610-50 based on the following criteria:

1. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 1 of 9VAC25-610-90 for the total amount of groundwater withdrawn in any consecutive 12-month period between July 1, 1987, and June 30, 1992; however, with respect to a political subdivision, an authority serving a political subdivision or a community waterworks regulated by the Virginia Department of Health, the department shall issue a groundwater withdrawal permit for the total amount of water withdrawn in any consecutive 12-month period between July 1, 1980, and June 30, 1992.

2. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 2 of 9VAC25-610-90 for the total amount of groundwater withdrawn and applied to a beneficial use in any consecutive 12-month period between July 1, 1992, and June 30, 1995.

3. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 4 of 9VAC25-610-90 for the total amount of groundwater withdrawn in any consecutive 12-month period between July 1, 1983, and June 30, 1993. The department shall evaluate all estimates of groundwater withdrawal based on projected water demands for crops and livestock as published by the Virginia Cooperative Extension Service, the United States Natural Resources Conservation Service, or other similar references and make a determination determine whether they are reasonable. In all cases only reasonable estimates will be used to document a permit limit.

4. The department shall issue a groundwater withdrawal permit for persons meeting the criteria of subdivision 5 of 9VAC25-610-90 for the amount of groundwater withdrawal needed to annually meet human consumption needs as proven in the water conservation and management plan approved by the department. The department shall include conditions in such permits that require the implementation of mandatory use restrictions before such withdrawals can be exercised.

5. When requested by persons described in subdivisions 1, 2, and 4 of 9VAC25-610-90, the department may issue groundwater withdrawal permits that include withdrawal amounts in excess of those which that an applicant can support based on historic usage. These additional amounts shall be based on documentation of water savings achieved through water conservation measures. The applicant shall demonstrate withdrawals prior to implementation of water conservation measures, type of water conservation measure implemented, and withdrawals after implementation of water conservation measures. The applicant shall provide evidence of withdrawal amounts through metered withdrawals and estimated amounts shall not be accepted to claim additional withdrawal amounts due to water conservation. Decreases in withdrawal amounts due to production declines, climatic conditions, population declines, or similar events shall not be used as a basis to claim additional withdrawal amounts based on water conservation.

C. The department shall issue groundwater withdrawal permits to persons withdrawing groundwater when a groundwater management area is declared or expanded after July 1, 1992, and not excluded from requirements of this chapter by 9VAC25-610-50 based on the following criteria:

1. The department shall issue a groundwater withdrawal permit to nonagricultural users for the total amount of groundwater withdrawn in any consecutive 12-month period during the five years preceding the effective date of the regulation creating or expanding the groundwater management area.

2. The department shall issue a groundwater withdrawal permit to agricultural users for the total amount of groundwater withdrawn in any consecutive 12-month period during the 10 years preceding the effective date of the regulation creating or expanding the groundwater management area. The department shall evaluate all estimates of groundwater withdrawal based on projected water demands for crops and livestock as published by the Virginia Cooperative Extension Service, the United States Natural Resources Conservation Service, or other similar references and make a determination determine whether they the estimates are reasonable. In all cases only reasonable estimates will be used to document a permit limit.

3. When requested by the applicant, the department may issue groundwater withdrawal permits that include withdrawal amounts in excess of those which that an applicant can support based on historic usage. These additional amounts shall be based on documentation of water savings achieved through water conservation measures. The applicant shall demonstrate withdrawals prior to implementation of water conservation measures, type of water conservation measure implemented, and withdrawals after implementation of water conservation measures. The applicant shall provide evidence of withdrawal amounts through metered withdrawals and estimated amounts shall not be accepted to claim additional withdrawal amounts due to water conservation. Decreases in withdrawal amounts due to production declines, climatic conditions, population declines, or similar events shall not be used as a basis to claim additional withdrawal amounts based on water conservation.

D. The department shall issue groundwater withdrawal permits to persons wishing to initiate a new withdrawal, expand an existing withdrawal, or reapply for a current withdrawal in any groundwater management area who have submitted complete applications and are not excluded from requirements of this chapter by 9VAC25-610-50 based on the following criteria:

1. The applicant shall provide all information required in subdivision 2 of 9VAC25-610-94 prior to the department's determination that an application is complete. The department may require the applicant to provide any information contained in subdivision 3 of 9VAC25-610-94 prior to considering an application complete based on the anticipated impact of the proposed withdrawal on existing groundwater users or the groundwater resource.

2. The department shall perform a technical evaluation to determine the areas of any aquifers that will experience at least one foot of water level declines due to the proposed withdrawal and may evaluate the potential for the proposed withdrawal to cause salt water intrusion into any portions of any aquifers or the movement of waters of lower quality to areas where such movement would result in adverse impacts on existing groundwater users or the groundwater resource. Prior to public notice of a draft permit developed in accordance with the findings of the technical evaluation and at the request of the applicant, the results of the technical evaluation, including all assumptions and input, will be provided to the applicant for review.

3. The department shall issue a groundwater withdrawal permit when it is demonstrated, by a complete application and the department's technical evaluation, to the department's satisfaction that the maximum safe supply of groundwater will be preserved and protected for all other beneficial uses and that the applicant's proposed withdrawal will have no significant unmitigated impact on existing groundwater users or the groundwater resource. In order to assure ensure that the applicant's proposed withdrawal complies with the above stated these requirements, the demonstration shall include, but not be limited to, compliance with the following criteria:

a. The applicant demonstrates that no other sources of water supply, including reclaimed water, are practicable.

b. The applicant demonstrates that the groundwater withdrawal will originate from the aquifer that contains the lowest quality water that will support the proposed beneficial use.

c. The applicant demonstrates that no pumps or water intake devices are placed lower than the top of the uppermost confined aquifer that a well utilizes as a groundwater source or lower than the bottom of an unconfined aquifer that a well utilizes as a groundwater source in order to prevent dewatering of a confined aquifer, loss of inelastic storage, or damage to the aquifer from compaction.

d. The applicant demonstrates that the amount of groundwater withdrawal requested is the smallest amount of withdrawal necessary to support the proposed beneficial use and that the amount is representative of the amount necessary to support similar beneficial uses when adequate conservation measures are employed.

e. The applicant provides a water conservation and management plan as described in 9VAC25-610-100 and implements the plan as an enforceable condition of the groundwater withdrawal permit.

f. The applicant provides certification by the local governing body 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.

g. The department's technical evaluation demonstrates that the area of impact of the proposed withdrawal will remain on property owned by the applicant or that there are no existing groundwater withdrawers within the area of impact of the proposed withdrawal.

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 an enforceable permit conditions condition:

(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 he 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.

h. The department's technical evaluation demonstrates that the stabilized effects from the proposed withdrawal in combination with the stabilized combined effects of 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 land surface and the top of the aquifer. Compliance with the 80% drawdown criteria will be determined at the points where the predicted one-foot drawdown contour is predicted for the proposed withdrawal.

i. The department's technical evaluation demonstrates that the proposed groundwater withdrawal will not result in salt water intrusion or the movement of waters of lower quality to areas where such movement would result in adverse impacts on existing groundwater users or the groundwater resource. This provision shall not exclude the withdrawal of brackish water, provided that the proposed withdrawal will not result in unmitigated adverse impacts.

4. The department shall also take the following factors into consideration when evaluating a groundwater withdrawal permit application or special conditions associated with a groundwater withdrawal permit:

a. The nature of the use of the proposed withdrawal;

b. The public benefit provided by the proposed withdrawal;

c. The proposed use of innovative approaches, such as aquifer storage and recovery systems, surface water and groundwater conjunctive use systems, multiple well systems that blend withdrawals from aquifers that contain different quality groundwater in order to produce potable water, and desalinization of brackish groundwater;

d. Prior public investment in existing facilities for withdrawal, transmission, and treatment of groundwater;

e. Climatic cycles;

f. Economic cycles;

g. The unique requirements of nuclear power stations;

h. Population and water demand projections during the term of the proposed permit;

i. The status of land use and other necessary approvals; and

j. Other factors that the department deems appropriate.

E. When proposed uses of groundwater are in conflict or available supplies of groundwater are not sufficient to support all those who desire to use them, the department shall prioritize the evaluation of applications in the following manner:

1. Applications for human consumption shall be given the highest priority;

2. Should there be conflicts between applications for human consumption, applications will be evaluated in order based on the date that said the applications were considered complete; and

3. Applications for all uses, other than human consumption, will be evaluated following the evaluation of proposed human consumption in order based on the date that said the applications were considered complete.

F. Criteria for review of reapplications for groundwater withdrawal permit.

1. The department shall consider all criteria in subsection D of this section prior to reissuing a groundwater withdrawal permit. Existing permitted withdrawal amounts shall not be the sole basis for determination of the appropriate withdrawal amounts when a permit is reissued.

2. The department shall reissue a permit to any public water supply user for an annual amount no less than the amount equal to that portion of the permitted withdrawal that was used by said the system to support human consumption during 12 consecutive months of the previous term of the permit.

G. The department is authorized to utilize and incorporate comprehensive groundwater, surface water, and aquifer data in permit decisions. Such data may include information relating to water levels, flow rates, and water quality.