for water supply has traditionally been divided between
the Virginia Department of Health (VDH) and Department of
Environmental Quality (DEQ) and the State Water Control
Board (SWCB-citizen group that makes final water decisions).
VDH requires that when a public water supply reaches 80%
of its capacity over a three-month period, expansion of
the waterworks should be planned. VDH then permits the building
of a water supply utility.
On the other
hand, DEQ regulates other aspects of water withdrawals
under the Virginia Water Protection Permit which requires
that any water withdrawal project needing § 401
certification under the Clean Water Act (virtually all
projects) obtain a state permit that establishes a minimum
DEQ is thus
charged to consider how the permit will affect the preservation
of instream flows for "protection of navigation, maintenance of waste assimilation
capacity, the protection of fish and wildlife resources
and habitat, recreation, cultural, and aesthetic values."
VA Code § 62.1-44.15:5(C).
also charges the State Water Control Board with the responsibility
to develop the water policy and articulates seven guidelines
for it to do so. VA Code Ann. 62.1-44.36. It also authorizes
the Board to resolve any conflict between water uses
(VA Code 62.1-44-37) and to make recommendations on planning
for future water supplies Va. Code. § 62.1-44.38.
The statute requires the Board to prepare plans and programs
for management of water resources for each major river
basin: Potomac-Shenandoah, Rappahannock, York, James,
Chowan, Roanoke, New River and Tennessee Big Sandy. Yet
30 years after this provision was put into the Code,
no such studies have been done.
Governor Warner in his first state of
the state address in 2002 signaled that water resources
and water supply would be a priority of his Administration.
At the same time, the Virginia Water Commission had also
introduced a resolution stating its intention to study the
issue of statewide water resources policy -- an issue that
the Water Commission had tried to tackle in 1994 and then
backed off, when local governments expressed concerns that
the state was preempting what they saw as their prerogative.
Thus, in the
fall of 2002, the Secretary of Natural Resources Tayloe
Murphy and Water Commission Chair Martin Williams agreed
to collaborate in developing legislation, and they made
sure to include many representatives of local and regional
waterworks in a "stakeholder" group.
The stakeholder group assembled by DEQ in November was huge:
representatives from the Agriculture, Virginia Manufacturers
Association, power industry, well drillers' association,
conservation organizations and 8 representatives of local
governments and waterworks associations as well as a several
officials from other agencies, i.e., Planning District Commissions,
US Army Corps of Engineers and US Geological Survey.
The drought also probably contributed
to a greater willingness to cooperate with state planning
efforts. Almost everyone seemed to agree that the state
as well as the local utilities needed to work together to
develop a comprehensive plan for present and future water
Early on, the committee addressed the
seven planning principles spelled out in the water law.
Immediately, members of the committee
started nitpicking the principles outlined in the statute,
1. Protection of existing water rights
subject to the principle that all state waters belong to
the public for use by the people for beneficial purposes
"What does it mean that state waters
belong to the public? Won't this infringe on private rights?" was
2. Adequate supplies should be preserved
and protected for human consumption while conserving maximum
supplies for other beneficial uses.
"Why should human consumption be elevated over other
consumption, for example farm animals?" asked another.
3. Integration and coordination of uses
of water for all beneficial purposes be achieved for the
maximum economic development.
"What are these beneficial uses?" was
In fact, Virginia law spells out the goals of protecting
booth instream and offstream beneficial uses: instream
includes "protection of fish and wildlife habitat, maintenance
of waste assimilation, recreation, navigation and cultural
and aesthetic values" and offstream domestic, agricultural,
electric power, commercial and industrial uses, public
water supply. VA Code Ann. 62.1-10(b).
But other principles mentioned in the
4. Protection of wildlife
5. Maintenance of stream flows for aquatic
6. Watershed development policies for
preservation of balanced multiple uses.
7. Due regard to planning of water recreation
facilities without pollution.
DEQ also proposed inclusion of several
other principles: the interconnection of ground and surface
water, the importance of water conservation and demand management
in nondrought periods; and the need to develop a variety
of drought measures and other water supply alternatives,
such as recycling and reuse of industrial process water.
Because there was so much contention over
rewriting the principles in existing law, DEQ leaders went
back to a simpler concept, getting the groups to agree to
writing a general statute directing the agency to do what
it was supposed to have done 30 years ago under the existing
law. Those of us in the conservation community were unsure
that a proposed law would come out of the advisory committee.
We thus worked with legislators from Charlottesville and
Roanoke, the two drought hot-spots, to create a amendment
to the water resources law. I'll discuss later some of its
Legislation: At any rate, the Technical
Advisory Committee agreed to a bill that was subsequently
endorsed by the Water Commission. The bill directs the SWCB
to develop a draft statewide water resources plan and criteria
for the development of local and regional water resources
plans. The legislation passed yet not without considerable
tinkering with its enactment clauses directing the agency
to report back to the General Assembly next year on its
draft criteria and draft plan and stating that the planning
effort should not affect, positively or negatively, projects
already in the pipeline.
Passage of the
legislation has simply delayed dealing with the hard
questions until the Technical Advisory Committee convenes
later this spring or summer. The advisory committee will
probably be somewhat expanded. It sorely needs more people
with expertise in groundwater hydrology and water resources
planning. "Special interest" representation
is inadequate to address issues of this magnitude, and
the municipal waterworks technical people do not have
all the answers either.
Planning Criteria: So let me tell you
what I think is needed in order to do sufficient water supply
planning, beginning with suggestions that Senator John Edwards
of Roanoke and Del. Mitch Van Yahres of Charlottesville
had proposed in their legislation-most of these could be
adopted as criteria:
- Affirmation that water IS a public
resource, not a private commodity, and that landowners
should continue to be allowed reasonable use for their
own purposes but not withdrawals that would supply needs
- Requiring development of comprehensive
regional watershed (and sub-watershed) plans;
- Projecting water needs over a 25-year
- Projection of groundwater and surface
water withdrawals for agricultural, industrial and domestic
- Protection of groundwater, headwaters
- Estimate of natural seasonal flow patterns
for major streams and rivers and minimum instream flows
necessary in drought and nondrought periods;
- Adoption of a management protocol using
natural seasonal flow to preserve instream flows necessary
for aquatic life;
- Comprehensive groundwater management
plans in discrete aquifers;
- Development of a management system
to prevent waste and encourage conservation;
- Conservation measures for drought and
- Development of a variety of supply
alternatives, including where appropriate, desalination
- Projection of amounts that can be withdrawn
without damage to instream uses and triggers for use of
conservation measures before increased water withdrawals
- A common set of population growth projections
on which all communities base their water needs (e.g.,
Virginia Employment Commission or Weldon Cooper Center
Water Basin Planning: How should these
criteria be addressed? Working on water supply needs on
a river basin or sub-basin level would appear to be the
best approach. Some areas are already doing this - The Rappahannock
River Basin Commission is the most comprehensive, but the
Roanoke River Basin has recently begun an interstate process
with North Carolina to develop a plan for the future of
Planning within each of Virginia's nine
river basins (and sub-basins) could be accomplished by convening
river basin commissions comprised of technical staff and
stakeholders, including local citizen and conservation representatives.
Each watershed commission would develop:
- an inventory of all existing and planned
future uses of water in the basin;
- scientific information about the capacity
of the watershed to supply water for human consumption,
agricultural, industrial and other uses while protecting
instream fisheries and recreational uses;
- A computerized hydrologic model (or
set of models) simulating the amount of flow in each stream
and river during permitted water withdrawals (and dam
These various water basin plans would
provide the basis for a statewide plan. The state would
need to develop a water permitting and enforcement system.
Finally, in addition to regional basin
planning, at an even more basic level, local city and county
governments should incorporate water resource planning into
local comprehensive plans. Beyond comprehensive plans, this
would entail development of conservation, pricing programs
and retrofits of water saving equipment to build the conservation
ethic during nondrought periods.
In summary, a few other quick observations:
- Localities should look to water conservation
as a potential supply source instead of simply building
more dams and reservoirs.
- The Water Board needs to use the existing
Surface Water Management Act to allocate water during
- The grandfathering of existing withdrawals
should end - all should be reviewed in light of today's
needs and technology.
- Finally, in this time of decreased
financial resources, we should consider instituting a
statewide fee based on water usage to fund additional
research on water quantity and quality improvements.
M. Olin Conference on Watershed Management
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