Part I. General
9VAC25-220-10. Definitions.
Unless a different meaning is required by the context, the following terms, as used in this chapter, shall have the following meanings:
"Beneficial use" means both instream and offstream uses. Instream beneficial uses include but are not limited to protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aesthetic values. Offstream beneficial uses include but are not limited to domestic (including public water supply), agricultural, electric power generation, commercial, and industrial uses. Domestic and other existing beneficial uses shall be considered the highest priority beneficial uses.
"Board" means the State Water Control Board. When used outside the context of the promulgation of regulations, including regulations to establish general permits, "board" means the Department of Environmental Quality.
"Controversial permit" means a water permitting action for which a public hearing has been granted pursuant to 9VAC25-220-170 and 9VAC25-220-175.
"Department" means the Department of Environmental Quality.
"Existing beneficial consumptive user" means a person who is currently withdrawing water from a stream for a beneficial use and not returning that water to the stream near the point from which it was taken.
"Investor-owned water company" means a water supplier owned by private investors which operates independently of the local government and is regulated by the Department of Health.
"Nonconsumptive use" means the use of water withdrawn from a stream in such a manner that it is returned to the stream without substantial diminution in quantity at or near the point from which it was taken and would not result in or exacerbate low flow conditions.
"Public hearing" means a fact-finding proceeding held to afford interested persons an opportunity to submit factual data, views, and arguments to the department.
"Serious harm" means man induced reduction to the flow of a surface water resource that results in impairment of one or more beneficial uses.
"Surface water" means any water in the Commonwealth, except groundwater as defined in § 62.1-255 of the Code of Virginia.
"Surface water management area" means a geographically defined surface water area in which the board deemed the levels or supply of surface water to be potentially adverse to public welfare, health, and safety.
"Surface water withdrawal certificate" means a document issued by the department as found in subsection D of § 62.1-243 of the Code of Virginia.
"Surface water withdrawal permit" means a document issued by the department evidencing the right to withdraw surface water.
"Water conservation program" means a program incorporating measures or practices which will result in the alteration of water uses resulting in reduction of water losses as contemplated by subsection B of § 62.1-243 of the Code of Virginia.
"Water management program" means a program incorporating measures or practices which will result in the alteration of water uses resulting in reduction of water losses as contemplated by subsection C of § 62.1-243 of the Code of Virginia.
Statutory Authority
§ 62.1-249 of the Code of Virginia.
Historical Notes
Derived from VR680-15-03 § 1.1, eff. June 3, 1992; amended, Virginia Register Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.
9VAC25-220-15. Permit rationale.
In granting a permit pursuant to this chapter, the department shall provide in writing a clear and concise statement of the legal basis, scientific rationale, and justification for the decision reached. When the decision of the department is to deny a permit, the department shall, in consultation with legal counsel, provide a clear and concise statement explaining the reason for the denial, the scientific justification for the same, and how the department's decision is in compliance with applicable laws and regulations. Copies of the decision, certified by the director, shall be mailed by certified mail to the permittee or applicant.
Statutory Authority
§ 62.1-249 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 39, Issue 5, eff. November 23, 2022.
9VAC25-220-20. Purpose.
This chapter delineates the procedures and requirements to be followed in connection with establishment of surface water management areas, the issuance of surface water withdrawal permits and the issuance of surface water withdrawal certificates by the department pursuant to the Code of Virginia. The establishment of surface water management areas, the issuance of surface water withdrawal permits and surface water withdrawal certificates provide for the protection of beneficial uses during periods of low stream flow.
Statutory Authority
§ 62.1-249 of the Code of Virginia.
Historical Notes
Derived from VR680-15-03 § 1.2, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.
9VAC25-220-30. Authority for chapter.
The authority for this chapter is found in Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
Statutory Authority
Chapter 24 (§ 62.1-242 et seq.) of Title 62.1 of the Code of Virginia.
Historical Notes
Derived from VR680-15-03 § 1.3, eff. June 3, 1992.
9VAC25-220-40. Initiate surface water management area proceeding.
A. The board upon its own motion or, in its discretion, upon receipt of a petition by any county, city or town within the surface water management area in question, or any state agency, may initiate a surface water management area proceeding whenever in its judgment there is evidence to indicate that:
1. A stream has substantial instream values as indicated by evidence of fishery, recreation, habitat, cultural or aesthetic properties;
2. Historical records or current conditions indicate that a low flow condition could occur which would threaten important instream uses; and
3. Current or potential offstream uses contribute to or are likely to exacerbate natural low flow conditions to the detriment of instream values.
B. If the board finds that the conditions required in subsection A of this section exist and further finds that the public welfare, health and safety require that regulatory efforts be initiated, the board shall, by regulation, declare the area in question to be a surface water management area.
C. In its proceeding to declare an area to be a surface water management area, the board shall, by regulation, determine when the level of flow is such that permit conditions in a surface water management area are in force. This flow level will be determined for each regulation establishing a surface water management area and included in it.
D. The board shall include in its decision a definition of the boundaries of the surface water management area.
E. The regulations may provide that the department, or the director may by order, declare that the level of flow is such that permit conditions are applicable for all or part of a surface water management area.
F. The board shall follow its Public Participation Guidelines (9VAC25-11) for all hearings contemplated under this section. If after a public hearing held pursuant to § 2.2-4007.01 of the Virginia Administrative Process Act, or at the request of an affected person or on the board motion, a hearing shall be held under § 2.2-4009 of the Virginia Administrative Process Act.
Statutory Authority
§ 62.1-249 of the Code of Virginia.
Historical Notes
Derived from VR680-15-03 § 1.1, eff. June 3, 1992; amended, Virginia Register Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.
9VAC25-220-50. Notice of surface water management area.
A. The department shall cause notice of the declaration of a surface water management area to be published in a newspaper of general circulation throughout the area covered by the declaration.
B. The department shall mail, by electronic or postal delivery, a copy of its decision on the proposed declaration of a surface water management area to the mayor or chairman of the governing body of each county, city or town within which any part of the area lies, or which is known by the department to make offstream use of water from the area, and to the chief administrative officer of any federal facility known by the department to be using water from within the area.
Statutory Authority
§ 62.1-249 of the Code of Virginia.
Historical Notes
Derived from VR680-15-03 § 1.5, eff. June 3, 1992; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 39, Issue 5, eff. November 23, 2022.
9VAC25-220-60. Agreements.
A. The department shall encourage, promote and recognize voluntary agreements among persons withdrawing surface water in the same surface water management area.
B. When the department finds that any such agreement, executed in writing and filed with the department, is consistent with the intent, purposes and requirements of this chapter, the department shall approve the agreement following a public hearing.
C. The department shall provide at least 60 days' notice of the public hearing to the public in general and individually to those persons withdrawing surface water in the surface water management area who are not parties to the agreement and shall make a good faith effort to so notify recreational user groups, conservation organizations and fisheries management agencies. The department shall be a party to the agreement.
D. The agreement, until terminated, shall control in lieu of a formal order, rule, or permit issued by the department or a regulation adopted by the board under the provisions of this chapter and shall be deemed to be a case decision under the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Permits issued in accordance with this chapter shall incorporate the terms of this agreement.
E. Any agreement shall specify the amount of water affected by it.
F. Any agreement approved by the department may include conditions that can result in its amendment or termination by the department following a public hearing if the department finds that it or its effect is inconsistent with the intent, purposes and requirements of this chapter. Such conditions include the following:
1. A determination by the department that the agreement originally approved by the department will not further the purposes of this chapter;
2. A determination by the department that circumstances have changed such that the agreement originally approved by the department will no longer further the purposes of this chapter; or
3. One or more of the parties to the agreement is not fulfilling its commitments under the agreement.
The department shall provide at least 60 days' notice of the public hearing to the public and individually to those persons withdrawing surface water in the surface water management area who are not parties to the agreement and shall make a good faith effort to so notify recreational user groups, conservation organizations and fisheries management agencies.
Statutory Authority
§ 62.1-249 of the Code of Virginia.
Historical Notes
Derived from VR680-15-03 § 1.6, eff. June 3, 1992; amended, Virginia Register Volume 16, Issue 15, eff. May 10, 2000; Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.