Surface Water Withdrawal Exclusion in Jeopardy

If any of your aggregate operations are grandfathered to withdraw surface water DEQ may be sending you a survey to complete. DEQ has convened an informal workgroup to explore the feasibility of requiring permits for all surface water withdrawals. 

Contained in §9VAC25-210-310 (A) (1) is the grandfathering exclusion for existing surface water withdrawals under the Virginia Water Protection (VWP) Program and enables your ability to withdraw surface water from a Virginia waterbody without a permit since 1985 with the only requirement being a monthly reporting of the amount of water withdrawn. Exclusions for VWP Surface Water Withdrawal Permit Virginia Code § 62.1- 44.15:22 states:  

“Notwithstanding any other provision, no Virginia Water Protection permit shall be required for any water withdrawal in existence on July 1, 1989; however, a permit shall be required if new § 401 certification is required to increase a withdrawal. No Virginia Water Protection Permit shall be required for any water withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal received a § 401 certification before January 1, 1989, with respect to installation of any necessary withdrawal structures to make such withdrawal; however, a permit shall be required before any such withdrawal is increased beyond the amount authorized by the certification.”

Many aggregate producers and others use the grandfathering provision to withdraw water as a necessary primary or secondary source of water for production and meet the requirements of the Clean Air Act (CAA) and other local, state, and federal permits. The Virginia Department of Environmental Quality (VDEQ) has started discussing the regulation of these grandfathered surface water withdrawals through an “Informal Workgroup” that began August 27, 2024, which includes invited members from almost exclusively municipalities who operate water treatment plants for drinking water and Dominion Energy. The Aggregate Producers and the Agricultural Producers were not invited to participate.

After reviewing the meeting agendas, and minutes, and through discussions with attendees, it becomes clear that VDEQ is attempting to require permits for many if not all of the grandfathered withdrawers, where VDEQ states their authority is provided in 9VAC25-210-50.A where the law states in part: “Except in compliance with a VWP permit unless the activity is otherwise exempted or excluded, no person shall …withdraw surface water…” “Va. Code § 62.1-44.15:22(B) limits the pertinent exemption from VWP permitting requirements to “any water withdrawal in existence on July 1, 1989; however, a permit shall be required if a new § 401 certification is required to increase a withdrawal….” 9VAC25-210-310.A. similarly exempts “any surface water withdrawal inexistence on July 1, 1989; however a permit shall be required if a new § 401 certification is required to increase a withdrawal…” “Surface water withdrawal” is defined in 9VAC25-210-300 as “a removal or diversion of surface water in Virginia or from the Potomac River for consumptive or no consumptive use thereby altering the instream flow or hydrologic regime of the surface water.”

In 1985, 1989, and again in 2007, VDEQ requested that all grandfathered surface water withdrawers submit supplemental information regarding their specific use, volume, and withdrawal location -amongst other questions that were more than the legal requirement of the maximum withdrawal amount and monthly withdrawal reporting. This requested information was to inform VDEQ of the location, amount, and type of withdrawal for each grandfathered user. In 2024, VDEQ is attempting to capture as many of the grandfathered withdrawers under a permit requirement, to regulate those grandfathered to withdraw surface water in the Commonwealth of Virginia. The presumption is that regulation will be better for Virginia and assure that water, a common pool resource (CPR) that is shared and used for both public and private good; continues to be shared and not overused by any one entity to the point that the resource is depleted. Currently, there is no issue with using the entire resource or evidence that the resource is being depleted to the point of affecting other resources or public needs. VDEQ believes that because the Commonwealth of Virginia is bound by laws the current cooperative use of water is not sustainable and needs to be further regulated, to assure that water is available for use by all in Virginia. Therefore, VDEQ’s most feasible solution is to require permits for all water withdrawers and regulate the withdrawal of water from the waters of the State.

VDEQ affirms that they do not have the data that was collected in 1985, 1989, and 2007; and do not believe that the current data being supplied monthly by the grandfathered users is sufficient to adequately model the water needs and usage for all water bodies in Virginia. Therefore, VDEQ must again collect additional information about each grandfathered withdrawal, to understand the issue. This information request will likely include:

• Maximum daily withdrawal as of July 1, 1989, in millions of gallons per day (MGD)
• Maximum pump capacity
• Screening
• Pipe sizing, and other limiting factors that effectively limit the maximum withdrawal amount

This request will likely provide 90 days to respond. Where responding is important to affirm your grandfathered use; moreover, appropriately responding is just as important. The responses are not intended to require engineering studies. It might be appropriate to resubmit what was submitted for your facility previously. This request will likely be sent from VDEQ in the coming weeks and when you receive the request, please reach out to John Brooks at Groundwater & Environmental Services (GES) with any questions.