The Aggregate Producer members of the Virginia Transportation Construction Alliance (VTCA) support the updates to the Manual, and DEQ’s efforts to keep the Manual up-to-date.  VTCA offers the following comment regarding Chapter 11.

First, Section 11.8.2 recognizes and acknowledges that occasionally there can be impacts that occur as a result of circumstances beyond a responsible party’s control, such as extreme weather events.  Certain water programs recognize and address such circumstances in “bypass” and “upset” provisions.   However, such emergency situations are not provided for in the VWP permit program.  VTCA notes that extreme weather events are increasing, and could lead to emergency situations that impact our members’ operations.  Accordingly, VTCA urges DEQ to consider adding or recognizing such conditions in the VWP program, as well as in all other water permitting programs.  While such a change could not be made in this Manual, VTCA supports the language recognizing that such situations can occur, and the need for DEQ to work with the regulated community to plan for and address such situations.

Section 11.8.3 discusses the potential overlap between the construction stormwater programs and the VWP program.  This section states that staff should not pursue compliance or enforcement action unless sediment from a construction project has been discharged to the extent that it creates a measurable depth of fill.  Such enforcement discretion is helpful, and could serve as a useful tool in the broader context of addressing emergency situations resulting from extreme weather events.

Thank you for the opportunity to provide these comments.  VTCA looks forward to continued discussions with DEQ regarding how best to address the impacts of extreme weather events on our members’ operations within the context of DEQ’s regulatory programs.

Thank you for the opportunity to provide comments on the proposed revisions to the Virginia Water Protection (“VWP”) Permit and Compliance Manual (“Manual”).  I am writing on behalf of the Virginia Manufacturers Association (“VMA”).   VMA represents a broad range of industries and manufacturers in Virginia.  Our members are subject to the permitting requirements outlined in the Manual, both for wetland-related impacts as well as for surface water withdrawals.

VMA supports the issuance of the revised Manual, and appreciates DEQ’s efforts to regularly update the Manual to reflect changes in the statutes, regulations and practices of the agency.  The revisions to the compensatory mitigation measures are helpful.  These provisions will be critical to our members, particularly in areas where mitigation bank credits are scarce.

VMA also noted the reference in Appendix B to the fact that a surface water withdrawal permitting manual is being developed.  This is much needed, and VMA encourages DEQ to move forward in issuing that manual quickly.  VMA looks forward to the opportunity to review and comment on it, once available.

With respect to surface water withdrawals, VMA members remain concerned about some of DEQ’s characterizations of grandfathered withdrawals, particularly in Chapter 11.  Grandfathered withdrawals are authorized, lawful withdrawals.  The grandfathering exemption applies until such time a Clean Water Act Section 401 certification is required to increase a withdrawal.  Va. Code 62.1-44.15:22.  All references to and characterizations of grandfathered withdrawals should be consistent with this statutory language. 

Thank you again for the opportunity to provide these comments.  Please let me know if you have any questions or need any additional information. 

Sincerely,

Brooks M. Smith

Andrea W. Wortzel

Counsel to VMA Water Subcommittee

I am writing on behalf of Mission H₂O to provide comments on proposed updates to the Virginia Department of Environmental Quality’s (“DEQ”) Virginia Water Protection (“VWP”) Permit and Compliance Manual (“Manual”).  Mission H₂O’s membership includes municipal, industrial and agricultural water users, all of whom withdraw and use water.  Some of our members withdraw water pursuant to DEQ-issued permits, and others withdraw water in accordance with statutory or regulatory exemptions, including withdrawals that are grandfathered from the VWP permitting program.  We appreciate the opportunity to review and comment on the draft guidance.

Although the Virginia Water Protection Permit and Compliance Manual pertains primarily to the wetlands permitting program, there are elements that apply to the surface water withdrawal program.  This is our primary area of interest. 

General Comments

The Manual states that a Surface Water Withdrawal Permitting Manual is being developed (see Appendix B, page 35).  Mission H₂O supports the need for such a manual, and looks forward to the opportunity to review and comment on it once available.  In the meantime, the inclusion of surface water withdrawal-related provisions or discussion, without the availability of a surface water withdrawal-related permitting manual to provide additional context, creates confusion.  For example, in Section 1.4.2.2 on page 11, the section identified activities that are considered impacts under the VWPP program “in wetlands,” but then lists “activities that alter instream flow (i.e., dams, surface water withdrawals or diversions). It is unclear why surface water withdrawals are listed here if this is intended to be a list of wetland-related impacts.  This is particularly true given that the start of this paragraph discusses impacts in the context of the broader VWPP program and discusses surface water usage. 

Another example can be found in Section 2.2.7.2 on page 9.  This section discusses the permitting implications for changes in land use or ownership.  Surface water withdrawals are mentioned here, but there is inadequate discussion of how a transfer of property or change in water use impacts the permitting for a water withdrawal.  The reference to surface water withdrawal activities should be deleted from this provision and addressed in the surface water withdrawal permitting manual when it is issued.  If the reference remains, more discussion is needed (and any additional language added should be subject to public comment).

Similarly, the discussion of the “need” for surface water withdrawal permits is insufficient as drafted in Section 3.3.1 on page 11.  Either more detail should be added (and provided for public comment) or the reference should be removed and reserved for discussion in the surface water withdrawal permitting manual.

The guidance does not adequately distinguish between “administrative” violations and those that harm human health or the environment.  It appears that DEQ is attempting to differentiate between program violations that may not have a direct impact on the environment and those that do.  That distinction is not clearly defined, however, and Mission H₂O supports distinguishing between purely administrative violations and direct, on-the-ground violations.

Specific Comments

• Section 2.2.6, second to last paragraph on page 7 – there appears to be a typographical error.  The sentence should be corrected to read, “Examples of these projects include dredging around an intake structure, dredging in any impoundment that is or has an existing water withdrawal associated with it a water withdrawal (i.e., golf course ponds, reservoirs), or dredging for the purpose of creating or expanding an impoundment for a water withdrawal.”  Additionally, it should be clarified that OWS will review the exclusion for purposes of evaluating the surface water withdrawal only; the Regional Office will still need to determine whether the exclusion from the wetland permitting requirements applies.

• Section 2.2.7.4, p. 11 – the paragraph explaining that the Agricultural and Silvicultural exclusion does not apply to surface water withdrawal activities should be modified to explain that such withdrawals may be subject to VWP requirements.  Mission H₂O recommends that this paragraph be revised to read:

The Agricultural and Silvicultural exclusion from the VWP wetlands permitting requirements does NOT apply to the surface water withdrawal activities.  Water withdrawal from these surface waters ponds or impoundments is subject to further review to determine whether it is exempt pursuant to 9VAC25-210-310.  is still subject to VWP requirements.  Any water withdrawal proposal must still be evaluated for water withdrawal impacts, and a determination must be made as to whether any of the water withdrawal activities are excluded under 9VAC25-210-310 apply.  See section 9VAC25-210-310 for surface water withdrawal activities that are excluded.  Staff should defer to any discussion or evaluation of the project’s water withdrawal permitting requirements to DEQ’s Office of Water Supply.

• Sections 11.3.2 (Other Factors in Assessing Points) and 11.4.1 (Administrative Non-Compliance) [pp. 16-17] – the guidance twice references “Administrative Noncompliance” as a distinct category of noncompliance but does not provide any definition other than “such as delinquent reports or notifications.”  DEQ should more carefully define this category of noncompliance to distinguish it from violations that cause harm to human health or the environment.

• Section 11 (throughout) – the guidance repeatedly references but does not define “enforcement action.”  DEQ proposes to eliminate the VWP Permit Program Noncompliance and Enforcement Referral Guidance (“Enforcement Guidance”) which explicitly defines “enforcement action.”  DEQ should define “enforcement action” consistent with the Enforcement Guidance, but clarify what is meant by “dereferral of a case.”

• Section 11.3.2, Item 2 (Aggravating Factors) [p. 16] – to address illegal withdrawals, DEQ should add exceeding a regulatory exemption amount by greater than 10%.  DEQ should also clarify that no points will be assessed as an aggravating factor where the alleged violation has minor or marginal adverse environmental impact.  Points are already assessed for the violation itself, and if there is only marginal environmental impact, there is no need to add a multiplier.

• Appendix 11.B – Points Matrix - Definitions [p. 31] – There are a series of definitions relating to exceedances and unpermitted impacts.  With respect to surface water withdrawals, the distinction in these two terms is unclear.  Is a major exceedance a withdrawal greater than that authorized in a permit, as compared to a major unpermitted impact, which is associated with an unauthorized withdrawal?  Clarification is needed.  Also, given that the regulations no longer distinguish between major and minor surface water withdrawals, is the 90 million gallon per month designation still appropriate?

• Mission H₂O recommends modifying the definitions below, moving them to the beginning of Chapter 11, and clarifying that the definitions apply throughout the Manual.

  • Major Exceedance – beginning on the third line, “[f]or surface water withdrawals only (e.g., does not include fill and/or excavation in surface waters), a major exceedance is typically considered a major surface water withdrawal, which is an unauthorized withdrawal of 90 million gallons per month or greater that does not otherwise qualify for a permit exclusion under Virginia statutes or regulations (see, e.g., 9VAC25-210-10, 9VAC25-210-60 and 9VAC25-210-310).

  • Major Unpermitted Impacts: beginning on the third line, “[f]or surface water withdrawals, a major unpermitted impact applies to an unauthorized withdrawal that is greater than or equal to 90 million gallons per month that does not otherwise qualify for a permit exclusion under Virginia statutes or regulations (see, e.g., Va. Code § 62.1-44.15:22; 9VAC25-210-10, 9VAC25-210-60 and 9VAC25-210-310).

  • Minor Exceedance: beginning on the third line, “[f]or surface water withdrawals only (e.g., does not include fill and/or excavation in surface waters), a minor exceedance is typically considered a minor surface water withdrawal, which is an unauthorized withdrawal of less than 90 million gallons per month that does not otherwise qualify for a permit exclusion under Virginia statutes or regulations (see, e.g., Va. Code § 62.1-44.15:22; 9VAC25-210-10, 9VAC25-210-60 and 9VAC25-210-310).

  • Minor Unpermitted Impacts: beginning on the fourth line, “[f]or surface water withdrawals, a minor unpermitted impact applies to an unauthorized withdrawal that is less than 90 million gallons per month that does not otherwise qualify for a permit exclusion under Virginia statutes or regulations (see, e.g., 9VAC25-210-10, 9VAC25-210-60 and 9VAC25-210-310).

  • Unpermitted Activity: add a new sentence at the end, “[f]or purposes of this chapter, an “unpermitted activity” does not include surface water withdrawals that qualify for a permit exclusion under Virginia statutes or regulations (see, e.g., 9VAC25-210-10, 9VAC25-210-60 and 9VAC25-210-310).

• Appendix 11.B – Points Matrix [pp. 32-36] – the guidance distinguishes between administrative and non-administrative violations for purposes of points assessment.  Although the guidance provides examples of each, it does not define “Administrative Violations” and “Non-Administrative (Onsite) Violations.”  Moreover, DEQ proposes to eliminate its Enforcement Guidance, which separately defined “Administrative Requirements” and “On-Site Requirements.”  DEQ should more clearly define and distinguish between these categories.

• Appendix 11.B – Points Matrix [p. 33] – the guidance assigns points for “intake modification without notification/permit.”  It is unclear how “intake modification” is defined.  Not all modifications require notification or a permit.  Clarification is needed.

• Appendix 11.B – Points Matrix [p. 33] – the guidance outlines points assessments relating to water withdrawals and includes a category for “grandfathered” users that increase their withdrawal without first obtaining a permit.  It is unclear what this means.  We recommend that DEQ apply the statutory language and change this provision to read, “grandfathered users that fail to obtain a required 401 certification to increase their withdrawal.”  Another alternative is to amend it to state “grandfathered users that increase their withdrawal above the grandfathered volume without first obtaining a permit.”  As DEQ is aware, there is considerable disagreement about the scope and interpretation of the grandfathering provisions found in the Virginia Code and DEQ regulations.  Mission H₂O reiterates its request that DEQ convene a stakeholder meeting to discuss this issue.

• Appendix 11.B – Points Matrix [p. 34] – failure to report a fish kill should not be further penalized if the fish kill itself is already assessed four points.

• Appendix 11.B – Points Matrix [p. 37] – DEQ should delete the aggravating factor “[p]otential for adverse impact or loss of beneficial use” because it is inappropriate and speculative to assess points based on an impact that has not and may not occur.

Thank you for considering our comments.  If you have questions or would like to discuss further, please call me at 804-697-1406.

Sincerely,

Andrea W. Wortzel