| Action Summary |
Section 62.1-44.15:20 of the State Water Control Law, § 62.1-44.2 et seq. of the Code of Virginia, requires Virginia Water Protection (VWP) Permits to be issued by the Department of Environmental Quality (the Department) for proposed activities that will alter the physical, chemical, or biological properties of state waters and make them detrimental to the public health, animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation or other uses. Section 62.1-44.15:22 A, which addresses surface water withdrawals and preservation of instream flow, provides that “[c]onditions contained in a Virginia Water Protection Permit may include the volume of water that may be withdrawn as a part of the permitted activity and conditions necessary to protect beneficial uses.” The Department implements the requirement to issue VWP Permits for surface water withdrawals in the Commonwealth through the Virginia Water Protection Permit Program Regulation, 9VAC25-210 (VWP Regulation).
Subsection B of § 62.1-44.15:22 provides an exemption from the permitting requirement for “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.” This exemption has been incorporated in the VWP Regulation at 9VAC25-210-310 and includes information requirements for owners and operators of surface water withdrawal systems that are subject to the exemption (commonly referred to as “grandfathered” withdrawals). In 2024, almost 80% of total surface water withdrawals (by volume) were from facilities that have grandfathered withdrawals (i.e., they had a water withdrawal in existence on July 1, 1989).
The challenge the Department faces in carrying out its responsibilities to permit surface water withdrawals, conduct water supply planning, and allocate water resources, is that neither the statute nor the regulation specifies whether the grandfathered withdrawal is the amount of water withdrawn prior to July 1, 1989, the capacity of the water withdrawal structures at that time, or any other quantification. The lack of specificity has led to a need for clarity and certainty in how grandfathered withdrawals are addressed in the face of increased demand for surface water withdrawals. Additionally, restrictive and other unclear provisions in the VWP Regulation limit the Department’s ability to manage surface water, including provisions related to the abandonment of a withdrawal (9VAC25-210-310) and who must apply for a permit (9VAC25-210-340). These issues limit the ability of the Department to ensure beneficial uses of state waters are maintained and protected.
The goal of this regulatory action is to amend the VWP Regulation to provide clarification on how exclusions from VWP Permits for surface water withdrawals are addressed, to improve consistency in implementing the VWP Regulation’s provisions, to provide certainty to water users on application of the exclusion provisions, and to provide better information to the Department for permitting, planning, and allocating water resources. This regulatory action follows discussions with an informal workgroup previously formed by the Department to address issues with grandfathered withdrawals. |
