State Water Commission

July 9, 2009

The State Water Commission met on July 9, 2009, in Richmond, Virginia, with Chairman Harvey Morgan presiding. Chairman Morgan mentioned his hope that the review of important issues related to water supply would lead to meaningful legislation. Virginia has been a water-rich state and the preservation of the aquifers is critical for the state’s future.

Presentations

Staff Report
Staff discussed the major water supply laws: the Ground Water Management Act, the Virginia Water Protection Permit Program (VWP), the Surface Water Withdrawal Permit, and § 62.1-44.38:1 of the Code of Virginia, which required the State Water Control Board to establish a comprehensive water supply planning process with stakeholders.

David Paylor, Dir., Dept. of Environmental Quality
David Paylor provided the Commission with an overview of the water supply planning efforts initiated by the drought that took place throughout the Commonwealth from 1999 through 2002. The drought was very severe and numerous systems were close to failure—public health was in danger and public water supplies were in complete crisis. In 2002 and 2003, executive and legislative responses led to the establishment of a Drought Response Technical Advisory Committee (TAC), local and regional water supply planning regulations, and changes to the VWP. The TAC included over 30 members from varied industries and met over a period of 18 months. Mr. Paylor stressed to the Commission that, in his opinion, the TAC represents one of the most successful efforts of stakeholder involvement with which he has participated. The TAC issued a consensus report that eventually resulted in regulatory changes to water supply planning and water withdrawal permitting. The water supply planning strongly encourages localities to work together. Mr. Paylor hopes that the plan, when completed, will be able to identify areas of conflict among localities. DEQ hopes to facilitate resolution of conflicts, but will not have regulatory oversight. An extensive question and answer period followed, which can be found on the Commission’s website.

Thomas Botkins, Virginia Manufacturer’s Association (VMA)
Thomas Botkins, also a member of the TAC, spoke to the Commission on a stakeholder's view of the TAC process. The TAC was professionally facilitated and included participants from conservation interests, agriculture, trade organizations, power generation, regional interests, local and regional utility managers, the Army Corps of Engineers, U.S.G.S., and academia. VMA began the process with concerns as to whether the water supply planning process would threaten ongoing water usage needs and supported the final regulation. Concerns remain that final water supply plans will overextend available supply. VMA hopes that all will have a reasonable and sustainable water supply and that any changes are publicly vetted.

Scott Kudlas, Dir., Office of Surface & Groundwater Supply Planning, Dept. of Environmental Quality
Scott Kudlas spoke to the Commission on the specifics of program implementation and emerging needs. Also, in response to earlier discussion, Mr. Kudlas noted that the Commonwealth has entered into compacts for interstate water use; is a member of bi-state commissions for shared water supplies; and adopted a cooperative and consensus-building process for water supply planning.

Mr. Kudlas emphasized that the State Water Resources Plan will not resolve conflicts among users or determine who gets a permit for withdrawal. Furthermore, localities do not need to include project alternatives in the approved plan in order to be permitted. Mr. Kudlas noted that the statewide planning effort is a shift from strictly local planning to regional interdependence. It is a data-intensive process that requires in excess of $1 million for adequate completion. Those funds have been cut to less than $400,000. The local plans have a number of strengths, but weaknesses remain. Localities may not be comfortable with their new role and may not have the capacity to collect the necessary data. Furthermore, as the de facto vendors of drinking water, localities may equate "water conservation" with "lost revenue."

Mr. Kudlas further pointed out a number of policy limitations in the Commonwealth.

• First, unlike other neighboring states, Virginia has not had a stated policy to promote and facilitate the development of basic data to characterize water resources to determine surface and groundwater resource availability statewide.
• Second, water supply is a state and local responsibility—there are no federal mandates for this effort and funding is solely state general fund money.
• Third, state budget cuts have a greater impact on water resource programs than programs with federal funding or mandates.
• Finally, there is no clear legislative policy to manage the relationships among the several agencies with jurisdiction over resource data.

Clarification was asked for on the conflicts of data management among agencies. Mr. Kudlas noted that well construction data in particular has been difficult to obtain. The data is maintained on paper in local health departments and he hopes that the data could be automated. The Department of Health has not had the resources to compile, automate, or transfer the documents to DEQ. In response to a question of whether the inadequate data collection has resulted from a lack of resources or policy, Mr. Kudlas responded that there is both a clear need of funding and statutory responsibility. For example, DEQ has entered all of the data obtained prior to 1991, which covered 38,000 wells. There are at least two million wells in the Commonwealth and DEQ has not been able to access subsequent records from the Department of Health. The information is important to establish the extent of the aquifer and identify subsidence risk.

Mr. Kudlas stated the importance of the question "how much groundwater do we have?" It is a question that cannot be clearly answered anywhere in Virginia. Groundwater monitoring capability peaked in the 1980s and has been limited ever since by dwindling investment and out-of-date modeling tools. The data is critical to avoid subsidence. (Subsidence is the nonreversible collapse of an aquifer from excessive water extraction.) Future issues for ground water planning might include the unregulated withdrawals from domestic use; the conflicts between states; and the need to develop dynamic regional flow models.

Mr. Kudlas also stated the importance of answering the question "how much surface water do we have?" The answer is better known than with groundwater, but surface water monitoring capability has also been in decline since the 1980s. There is a limited understanding of agricultural uses and a lack of certainty on the amount of water taken by grandfathered withdrawals. Agricultural use can be difficult to measure because farmers are generally not forthcoming. While it is unlikely that there will be a conflict with agricultural use, more information is needed to ensure adequate minimum flows in most years. Furthermore, there is a great lack of certainty in the quantity of withdrawals from grandfathered user. DEQ has asked the grandfathered users (all users prior to 1989) to report on their maximum capacity, but response has been disappointing. Future issues for surface water planning might include: the need to better understand agricultural use; the balancing of water supply among uses; and the need to improve water withdrawal reporting to include return flows sales, and transfers and real measurements. Mr. Kudlas added that, for all the areas where data is incomplete, resource managers are forced to be overcautious to preserve the resource. An extensive question and answer period followed, which can be found on the Commission’s website.

Andrea Wortzel, Hunton & Williams
Ms. Wortzel provided the Commission with a review of concerns held by stakeholders. First, the priority of uses found in statute and at common law is not clear and may be in conflict. Second, the impacts of water supply planning on permitting should be identified. Third, water reuse and the distinction between consumptive and nonconsumptive uses should be taken into greater consideration. Finally, the planning process itself should be reviewed to ensure seamless implementation and coordination among partners. Ms. Wortzel suggested that it might be helpful to have a joint meeting between the Water Commission and the State Water Control Board and expressed her hope that the Commission would utilize stakeholder committees to review potential actions.

Next Meeting

The Water Commission will meet again at least once during the current interim. The next meeting date will be posted on the Commission’s website and the General Assembly calendar as soon as information is available.

Chairman:
The Hon. Harvey Morgan

For information, contact:
Ellen Porter, DLS Staff