Title of Regulation: 9VAC25-610. Groundwater Withdrawal Regulations (Rev. A15) (amending 9VAC25-610-10; adding 9VAC25-610-42).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 7, 2016.

Effective Date: September 22, 2016.

Agency Contact: Gary Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4019, or email gary.graham@deq.virginia.gov.

Basis: Section 62.1-44.15 of the State Water Control Law (Chapter 3.1 of Title 62.1 of the Code of Virginia) and subdivision 8 of § 62.1-256 of the Virginia Groundwater Management Act (Chapter 25 of Title 62.1 of the Code of Virginia) authorize the State Water Control Board to adopt such regulations as it deems necessary to administer and enforce the provisions of these chapters.

Subdivision 3 of § 62.1-256 of the Code of Virginia provides that the State Water Control Board shall study, investigate, and assess groundwater resources and all problems concerned with the quality and quantity of groundwater located within the Commonwealth.

Subdivision 4 of § 62.1-256 of the Code of Virginia allows the board to require any person withdrawing groundwater for any purpose anywhere in the Commonwealth, whether or not declared to be a groundwater management area, to furnish to the board such information with regard to such groundwater withdrawal and the use thereof as may be necessary to carry out the provisions of Chapter 25.

Subdivision 9 of § 62.1-256 of the Code of Virginia provides that the board has the power to delegate to its executive director, with some exceptions, any of the powers and duties invested in it to administer and enforce the provisions of Chapter 25.

Chapter 465 of the 2015 Acts of Assembly amended § 62.1-258 of the Code of Virginia to require that each private well, as defined in § 32.1-176.3 of the Code of Virginia, that is constructed in a groundwater management area be registered by the certified water well systems provider with the board within 30 days of the completion of the construction and that such registration shall be in a format prescribed by the board. It further requires the board and the State Board of Health to develop joint registration forms and processes.

Purpose: The purpose of this regulation is to protect the water quality and quantity in aquifers within the Commonwealth of Virginia and thereby to protect the health, safety, and welfare of its citizens.

The purpose of this regulatory action is to incorporate the statutory changes in Chapter 465 of the 2015 Acts of Assembly, which amended § 62.1-258 of the Code of Virginia to require registration of private wells constructed in groundwater management areas. Private well withdrawals make up an estimated one-third of all groundwater withdrawn from the aquifer system. These withdrawals are growing at a faster rate than all other uses of groundwater. The information provided will identify the location of the wells and the aquifer from which the private wells are taking groundwater, allowing the impact of these withdrawals to be evaluated and taken into consideration in future groundwater management decisions. The proposed amendment will also provide some necessary implementation and information provisions.

Rationale for Using Fast-Track Rulemaking Process: Except for the specific information to be required on the registration form and some minor implementation provisions, the language of Chapter 465 of the 2015 Acts of Assembly allows little leeway in developing the regulatory requirements. Certified water well systems providers are already familiar with the types of registration information required of other types of wells and the Department of Environmental Quality (DEQ) and the Department of Health have already reached agreement concerning the information to be required for registration of private wells. Controversy is not expected.

Substance: A new section is added to 9VAC25-610 to require registration of private wells to specify who must submit the registration and to whom it must be submitted, to specify in what time period the registration must be submitted, and to list the minimum information that DEQ needs to identify the wells in the field and to evaluate the impact of private well water withdrawals. In addition, two definitions are added to an existing section, which are necessary to support the new requirements.

Issues: There are no advantages or disadvantages for the public at large resulting from this amendment. The amendment will ensure that the resource is better managed for all users and the public in areas where the sustainability of groundwater is threatened.

The advantage to the department is better information about the potential for private well water withdrawals resulting in better management of groundwater resources. There is no disadvantage to the department resulting from this amendment.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapter 465 of the 2015 Acts of Assembly amended § 62.1-258 of the Code of Virginia, in part, to add a requirement that private wells constructed in a ground water management area be registered with the State Water Control Board (Board) by the certified water well systems provider within 30 days of the completion of well construction. Consequently, the Board proposes to amend this regulation to: 1) include the above statutory requirement for registration, 2) specify that the registration be submitted to the Department of Environmental Quality (DEQ) on a form, paper or electronic, provided by DEQ, 3) list the information required for registration, and 4) add relevant definitions.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Including the statutory requirement for registration, specifying that the registration be submitted to DEQ, list the information required for registration, and adding relevant definitions all are beneficial in improving clarity and do not add costs. The required registration of private wells constructed in a ground water management area enables DEQ to track the growth of private well water withdrawals and evaluate the relative impact of private wells on the aquifer system. This will result in a more robust understanding of the demands on the aquifers in areas where the sustainability of groundwater is threatened, and it will help ensure that the resource is better managed for all users and the public.

Water well systems providers must already obtain a pre-construction permit from the Virginia Department of Health (VDH) prior to construction of a new well. The process of getting a well drilled requires that the provider collect information at many parts of that process. Much of the required information is known before drilling starts, since it is determined by well owner's needs, what is known in advance about the water table and substrate, the detail necessary for a contract, and professional well construction standards. Other required information is collected during the well drilling process and some is collected after the well is drilled. Thus the majority of the information required for the registration form falls into one of these categories and would either be known or easily obtained as part of that process. In most cases, the providers already collect this information.

The information that is most likely new and something that may have to be researched is the well location information. But nowadays, latitude, longitude, map numbers, and sometimes subdivision plat information are either available using a GPS phone or are readily available on the Internet. Additionally, according to DEQ staff, VDH and DEQ staff are prepared to readily assist with obtaining this location information, so it is not expected that the provider would have to spend a large amount of time doing new research to collect the required information.

Thus, considering the benefit for managing aquifers in areas where the sustainability of groundwater is threatened and the relatively small additional time cost for water well systems providers, the benefits likely exceed the costs for all proposed changes.

Businesses and Entities Affected. The proposed amendments affect water well systems providers that construct private wells. There are approximately 50 such firms, all of which qualify as small businesses, in the Commonwealth.¹

Localities Particularly Affected. The proposed amendments particularly affect localities within ground water management areas. Two ground water management areas are established in 9VAC25-600-20, the Eastern Virginia Groundwater Management Area and the Eastern Shore of Virginia Groundwater Management Area. The Eastern Virginia Groundwater Management Area consists of the Counties of Charles City, Essex, Gloucester, Isle of Wight, James City, King George, King and Queen, King William, Lancaster, Mathews, Middlesex, New Kent, Northumberland, Prince George, Richmond, Southampton, Surry, Sussex, Westmoreland, and York; the areas of Caroline, Chesterfield, Fairfax, Hanover, Henrico, Prince William, Spotsylvania, and Stafford Counties east of Interstate 95; and the Cities of Chesapeake, Franklin, Hampton, Hopewell, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia Beach, and Williamsburg. The Eastern Shore of Virginia Groundwater Management Area consists of the Counties of Accomack and Northampton.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. Chapter 465 of the 2015 Acts of Assembly amended § 62.1-258 of the Code of Virginia, in part, to add a requirement that private wells constructed in a ground water management area be registered with the State Water Control Board. The proposed amendments to the regulation specify registration requirements that will require small water well systems providers to fill out and submit a registration form (online in practice) for each such completed well. This introduces a time cost for these small firms; but since the required information should in most cases be readily available, the time cost will in most cases be small.

Alternative Method that Minimizes Adverse Impact. There is no apparent alternative method that will meet the intended policy goal at a smaller cost for small businesses.

Adverse Impacts:

Businesses. Pursuant to legislation, the proposed amendments to the regulation specify registration requirements that will require water well systems providers to fill out and submit a registration form (online in practice) for each such completed well. This introduces a time cost for these firms; but since the required information should in most cases be readily available, the time cost will in most cases be small.

Localities. The proposed amendments are unlikely to adversely affect localities.

Other Entities. The proposed amendments are unlikely to adversely affect other entities.

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¹Data Source: DEQ

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

Summary:

Chapter 465 of the 2015 Acts of Assembly requires that private wells constructed in a groundwater management area be registered with the State Water Control Board by the certified water well systems provider within 30 days of the completion of well construction. To conform to the chapter, the amendments (i) require registration of private wells; (ii) specify that the registration be submitted to the Department of Environmental Quality on a form, paper or electronic, within 30 calendar days of completion of well construction; (iii) establish the minimum information necessary for the department to identify the wells in the field and to evaluate the impact of private well water withdrawals; and (iv) add two definitions to support the new requirements.

Part I
General

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, but is not limited to 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.

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

"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, but are not limited to, 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.

"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 who 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 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.

"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.

9VAC25-610-42. Private well registration.

A. Each certified water well systems provider shall register with the board each private well, as defined in 9VAC25-610-10, that is constructed in a groundwater management area after September 22, 2016.

B. The registration shall be made within 30 calendar days of the completion of well construction.

C. Such registration shall be submitted to the department on a form, paper or electronic, provided by the department for registration purposes.

D. The following information, at a minimum, shall be required for each registration:

1. Contact information, including:

a. The well owner's name and mailing address; and

b. The certified water well system provider's name and mailing address.

2. The well location, including:

a. The physical address, tax map number, or grid parcel identification number (GPIN) of the property at which the well is located;

b. The subdivision name and appropriate section, block and lot numbers, if applicable; and

c. The latitude, longitude, and datum of the well.

3. The type of use of the well water.

4. Well construction information, including:

a. The well designation name or number;

b. The start and completion dates of well construction;

c. The depth of the well and borehole depth;

d. Borehole sizes;

e. Height of casing above the land surface, if applicable;

f. Size, depth, and material weight per foot or wall thickness of the casing, if applicable;

g. Size, type, and mesh of the screen or water zones, if applicable; and

h. The type of grout, grouting method, and type of seal, if applicable.

5. If a pump test is conducted, the pump test information, including:

a. Date and duration of test;

b. Pre-pumped static water level; and

c. Stabilized measured pumping level and yield.

6. Production pump intake depth, if applicable.

7. Drillers log.

8. The certified water well system provider's certification statement.