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 We appreciate the opportunity to review and comment on the draft guidance.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.
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.
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. 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