Administrative Code

Virginia Administrative Code
5/24/2024

Part II. Permit Requirements, Application and Issuance

9VAC25-220-70. Application for a permit.

A. Duty to apply. Any person who withdraws surface water or proposes to withdraw surface water in a surface water management area must have a surface water withdrawal permit, except persons excluded under subsection B of this section or exempted under subsection C of this section, or withdrawals made pursuant to a voluntary agreement approved by the department pursuant to 9VAC25-220-60. A complete application shall be submitted to the department in accordance with this section.

B. Exclusions. The following do not require a surface water withdrawal permit but may require other permits under state and federal law:

1. Any nonconsumptive use;

2. Any water withdrawal of less than 300,000 gallons in any single month;

3. Any water withdrawal from a farm pond collecting diffuse surface water and not situated on a perennial stream as defined in the United States Geological Survey 7.5-minute series topographic maps;

4. Any withdrawal in any area which has not been declared a surface water management area; and

5. Any withdrawal from a wastewater treatment system permitted by the Department of Environmental Quality or the Department of Energy.

C. Exemptions. The following do not require a surface water withdrawal permit but may require other permits under state and federal law. However, the following do require a surface water withdrawal certificate containing details of a department approved water conservation or management plan as found in subdivision 2 of 9VAC25-220-100 and Part V (9VAC25-220-250 et seq.) of this chapter. It is not the intent or purpose of this certification program to affect the withdrawal of water approved by the department.

1. No political subdivision or investor-owned water company permitted by the Department of Health shall be required to obtain a surface water withdrawal permit for:

a. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989.

b. Any withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal has received, by that date, a § 401 certification from the State Water Control Board pursuant to the requirements of the Clean Water Act to install any necessary withdrawal structures and make such withdrawal; however, a permit shall be required in any surface water management area before any such withdrawal is increased beyond the amount authorized by the said certification.

c. Any withdrawal in existence on July 1, 1989, from an instream impoundment of water used for public water supply purposes; however, during periods when permit conditions in a water management area are in force pursuant to subsection G of 9VAC25-220-80 and 9VAC25-220-190, and when the rate of flow of natural surface water into the impoundment is equal to or less than the average flow of natural surface water at that location, the department may require release of water from the impoundment at a rate not exceeding the existing rate of flow of natural surface water into the impoundment. Withdrawals by a political subdivision or investor-owned water company permitted by the Department of Health shall be affected by this subdivision only at the option of that political subdivision or investor-owned water company.

2. No existing beneficial consumptive user shall be required to obtain a surface water withdrawal permit for:

a. Any withdrawal in existence on July 1, 1989; however, a permit shall be required in a declared surface water management area before the daily rate of any such existing withdrawal is increased beyond the maximum daily withdrawal made before July 1, 1989; and

b. Any withdrawal not in existence on July 1, 1989, if the person proposing to make the withdrawal has received, by that date, a § 401 certification from the State Water Control Board pursuant to the requirements of the Clean Water Act to install any necessary withdrawal structures and make such withdrawals; however, a permit shall be required in any surface water management area before any such withdrawal is increased beyond the amount authorized by the said certification.

D. Duty to reapply.

1. Any permittee with an effective permit shall submit a new permit application at least 180 days before the expiration date of an effective permit unless permission for a later date has been granted by the department.

2. Owners or persons who have effective permits shall submit a new application 180 days prior to any proposed modification to their activity which will:

a. Result in a significantly new or substantially increased water withdrawal; or

b. Violate or lead to the violation of the terms and conditions of the permit.

E. Complete application required.

1. Any person proposing to withdraw water shall submit a complete application and secure a permit prior to the date planned for commencement of the activity resulting in the withdrawal. There shall be no water withdrawal prior to the issuance of a permit.

2. Any person reapplying to withdraw water shall submit a complete application.

3. A complete surface water withdrawal permit application to the department shall, as a minimum, consist of the following:

a. The location of the water withdrawal, including the name of the waterbody from which the withdrawal is being made;

b. The average daily withdrawal, the maximum proposed withdrawal, and any variations of the withdrawal by season including amounts and times of the day or year during which withdrawals may occur;

c. The use for the withdrawal, including the importance of the need for this use;

d. Any alternative water supplies or water storage; and

e. If it is determined that special studies are needed to develop a proper instream flow requirement, then additional information may be necessary.

4. Where an application is considered incomplete, the department may require the submission of additional information after an application has been filed and may suspend processing of any application until such time as the applicant has supplied missing or deficient information and the department considers the application complete. Further, where the applicant becomes aware that he omitted one or more relevant facts from a permit application, or submitted incorrect information in a permit application or in any report to the department, he shall immediately submit such facts or the correct information.

5. Any person proposing to withdraw water shall submit an application for a permit 180 days prior to the date planned for commencement of the activity resulting in the withdrawal. There shall be no water withdrawal prior to the issuance of a permit.

6. Any person with an existing unpermitted water withdrawal operation shall submit an application immediately upon discovery by the owner or within 30 days upon being requested to by the department whichever comes first.

F. Informational requirements. All applicants for a surface water withdrawal permit shall provide all such information consistent with this chapter as the department deems necessary. All applicants for a permit must submit a complete permit application in accordance with subsection A of this section.

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 38, Issue 3, eff. October 27, 2021; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-80. Conditions applicable to all permits.

A. Duty to comply. The permittee shall comply with all conditions of the permit. Nothing in this chapter shall be construed to relieve the surface water withdrawal permit holder of the duty to comply with all applicable federal and state statutes, regulations, standards and prohibitions. Any permit noncompliance is a violation of the law and is grounds for enforcement action, permit suspension, cancellation, revocation, modification or denial of a permit renewal application.

B. Duty to mitigate. The permittee shall take all reasonable steps to (i) avoid all adverse environmental impact which could result from the activity, (ii) where avoidance is impractical, minimize the adverse environmental impact, and (iii) where impacts cannot be avoided, provide mitigation of the adverse impact on an in-kind basis.

C. Permit action.

1. A permit may be modified, revoked, suspended, cancelled, reissued, or terminated as set forth in this chapter.

2. If a permittee files a request for permit modification, suspension or cancellation, or files a notification of planned changes, or anticipated noncompliance, the permit terms and conditions shall remain effective until the request is acted upon by the department. This provision shall not be used to extend the expiration date of the effective permit.

3. Permits may be modified, revoked and reissued or terminated upon the request of the permittee, or upon department initiative to reflect the requirements of any changes in the statutes or regulations.

D. Inspection and entry. Upon presentation of credentials and upon consent of the owner or custodian, any duly authorized agent of the department may, at reasonable times and under reasonable circumstances:

1. Enter upon any permittee's property, public or private, and have access to, inspect and copy any records that must be kept as part of the permit conditions;

2. Inspect any facilities, operations or practices including monitoring and control equipment regulated or required under the permit.

E. Duty to provide information. The permittee shall furnish to the department, within a reasonable time, any information which the department may request to determine whether cause exists for modifying, reissuing, suspending and cancelling the permit, or to determine compliance with the permit. The permittee shall also furnish to the department, upon request, copies of records required to be kept by the permittee. This information shall be furnished to the department pursuant to § 62.1-244 of the Code of Virginia.

F. Monitoring and records requirements.

1. Monitoring shall be conducted according to approved methods as specified in the permit or as approved by the department.

2. Measurements taken for the purpose of monitoring shall be representative of the monitored activity.

3. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart or electronic recordings for continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three years from the date of the expiration of a granted permit. This period may be extended by request of the department at any time.

4. Records of monitoring information shall include:

a. The date, exact place and time of measurements;

b. The name of the individuals who performed the measurements;

c. The date the measurements were compiled;

d. The name of the individuals who compiled the measurements;

e. The techniques or methods supporting the information such as observations, readings, calculations and bench data used; and

f. The results of such techniques or methods.

G. Permit conditions become applicable.

1. Permit conditions become applicable in a surface water management area upon notice by the department to each permittee by mail, by electronic or postal delivery, or cause notice of that to be published in a newspaper of general circulation throughout the area.

2. The department shall notify each permittee by mail or cause notice of that to be published in a newspaper of general circulation throughout the surface water management area when the declaration of water shortage is rescinded.

Statutory Authority

§ 62.1-249 of the Code of Virginia.

Historical Notes

Derived from VR680-15-03 § 2.2, eff. June 3, 1992; amended, Virginia Register Volume 29, Issue 24, eff. September 1, 2013; Volume 32, Issue 10, eff. February 25, 2016; Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-90. Signatory requirements.

Any application, report, or certification shall be signed as follows:

1. Application.

a. For a corporation: by a responsible corporate official. For purposes of this section, a responsible corporate official means (i) a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25,000,000 in second-quarter 1980 dollars, if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

b. For a municipality, state, federal or other public agency by either a principal executive officer or ranking elected official. A principal executive officer of a federal, municipal, or state agency includes the chief executive officer of the agency or head executive officer having responsibility for the overall operation of a principal geographic unit of the agency.

c. For a partnership or sole proprietorship, by a general partner or proprietor respectively.

d. Any application for a permit under this regulation must bear the signatures of the responsible party and any agent acting on the responsible party's behalf.

2. Reports. All reports required by permits and other information requested by the department shall be signed by:

a. One of the persons described in subdivision a, b or c of this section; or

b. A duly authorized representative of that person. A person is a duly authorized representative only if:

(1) The authorization is made in writing by a person described in subdivision a, b, or c of this section; and

(2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position.

(3) If an authorization is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization shall be submitted to the department prior to or together with any separate information, or applications to be signed by an authorized representative.

3. Certification of application and reports. Any person signing a document under subdivision 1 or 2 of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete."

Statutory Authority

§ 62.1-249 of the Code of Virginia.

Historical Notes

Derived from VR680-15-03 § 2.3, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-100. Establishing applicable limitations or other permit conditions.

In addition to the conditions established in 9VAC25-220-80, each permit shall include conditions meeting the following requirements where applicable:

1. Instream flow conditions.

a. Subject to the provisions of § 62.1-242 et seq. of the Code of Virginia and subject to the authority of the State Corporation Commission over hydroelectric facilities contained in § 62.1-80 et seq. of the Code of Virginia instream flow conditions may include but are not limited to conditions that limit the volume and rate at which water may be withdrawn at certain times and conditions that require water conservation and reductions in water use.

b. This flow requirement shall be appropriate for the protection of beneficial uses.

c. In determining the level of flow in need of protection of beneficial uses, the department shall consider, among other things, recreation and aesthetic factors and the potential for substantial and long-term adverse impact on fish and wildlife found in that particular surface water management area. Should this determination indicate a need to restrict water withdrawal, the department shall consider, among other things, the availability of alternative water supplies, the feasibility of water storage or other mitigating measures, and the socioeconomic impacts of such restriction on the potentially affected water users and on the citizens of the Commonwealth in general.

2. Water conservation or management plans.

a. Subject to the provisions of § 62.1-242 et seq. of the Code of Virginia permit conditions may include voluntary and mandatory conservation measures.

b. Political subdivisions and investor-owned water companies shall have water conservation plans which shall include, but not be limited to, the following:

(1) Use of water saving plumbing fixtures in new and renovated plumbing as provided under the Uniform Statewide Building Code, Chapter 6 (§ 36-97 et seq.) of Title 36 of the Code of Virginia;

(2) A water loss reduction program;

(3) A water use education program; and

(4) Ordinances prohibiting waste of water generally and providing for mandatory water use restrictions, with penalties during water shortage emergencies.

c. Beneficial consumptive users shall have water management plans which shall include, but not be limited to, the following:

(1) Use of water saving plumbing;

(2) A water loss reduction program;

(3) A water use education program; and

(4) Mandatory reductions during water shortage emergencies. However, these reductions shall be on an equitable basis with other uses exempted under subsection C of 9VAC25-220-70.

3. Compliance requirements. The permit shall include requirements to comply with all appropriate provisions of state laws and regulations.

4. Duration of permits. Surface water withdrawal permits issued under this chapter shall have an effective duration of not more than 10 years. The term of these permits shall not be extended by modification beyond the maximum duration. Extension of permits for the same activity beyond the maximum duration specified in the original permit will require reapplication and reissuance of a new permit.

5. Monitoring requirements as conditions of permits.

a. All permits shall specify:

(1) Requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods when required as a condition of the permit; and

(2) Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity and including, when appropriate, continuous monitoring.

b. All permits shall include requirements to report monitoring results with a frequency dependent on the nature and effect of the water withdrawal, but in no case less than once per year.

6. Reissued permits. When a permit is renewed or reissued, limitations or conditions must be in conformance with current limitations or conditions.

Statutory Authority

§ 62.1-249 of the Code of Virginia.

Historical Notes

Derived from VR680-15-03 § 2.4, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-110. Draft permit formulation.

A. Upon receipt of a complete application, pursuant to subsection A of 9VAC25-220-70, the department shall review the application and make a tentative determination to issue the permit or deny the application. In considering whether to issue or deny a permit under this section, the department shall consider:

1. The number of persons using a stream and the object, extent and necessity of their representative withdrawal uses;

2. The nature and size of the stream;

3. The type of businesses or activities to which the various uses are related;

4. The importance and necessity of the uses claimed by permit applicants, or of the water uses of the area and the extent of any injury or detriment caused or expected to be caused to instream or offstream uses;

5. The effects on beneficial uses; and

6. Any other relevant factors.

B. If a tentative decision is to issue the permit then a draft permit shall be prepared in advance of public notice. The following tentative determinations shall be incorporated into a draft permit:

1. The level of flow that activates the permit conditions, water withdrawal limitations, and other requirements applicable to the permit;

2. Monitoring requirements;

3. Instream flow requirements; and

4. Water conservation or management requirements.

C. If the tentative decision is to deny the application, the department shall do so in accordance with 9VAC25-220-240.

Statutory Authority

§ 62.1-249 of the Code of Virginia.

Historical Notes

Derived from VR680-15-03 § 2.5, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-120. Permit issuance.

A. Upon completion of all public involvement and consideration of all comments, the director may grant the permit.

B. Permits issued by priority system.

1. For the purposes of this chapter, the following water-use classification system based on beneficial uses, instream and offstream, shall be used by the department when issuing permits:

a. Class I uses are domestic (including public water supply). Class I uses are all existing uses as of July 1, 1989. Included among existing uses shall be any projected use which has been relied upon in the development of an industrial project and for which a permit has been obtained by January 1, 1989, pursuant to § 404 of the Clean Water Act;

b. Class II uses are new uses, not existing on July 1, 1989. These uses include both instream uses, protection of fish and wildlife habitat, maintenance of waste assimilation and offstream uses, agriculture, electric power generation, commercial and industrial; and

c. Class III uses are new uses not existing on July 1, 1989. They include, but are not limited to, recreation, navigation, and cultural and aesthetic values.

2. Class I uses shall be given the highest priority in the issuance of permits for other beneficial uses. Class II and Class III uses are of decreasing priority respectively.

3. The department may impose restrictions on one or more classes of beneficial uses as may be necessary to protect the surface water resources of the area from serious harm.

4. In its permit decision, the department shall attempt to balance offstream and instream uses so that the welfare of the citizens of the Commonwealth is maximized without imposing unreasonable burdens on any individual water user or water-user group. The decision to implement this balance may consist of approval of withdrawal without restriction, approval subject to conditions designed to protect instream uses from unacceptable adverse effects, or disapproval of the withdrawal.

Statutory Authority

§ 62.1-249 of the Code of Virginia.

Historical Notes

Derived from VR680-15-03 § 2.6, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

9VAC25-220-130. Effect of a permit.

A. Compliance with a surface water withdrawal permit constitutes compliance with the surface water withdrawal permit requirements of §§ 62.1-242 through 62.1-253 of the Code of Virginia.

B. Nothing contained in this chapter shall be construed as an expressed or implied waiver of other permit requirements, state or federal, including the Virginia water protection permit and Water Withdrawal Reporting (9VAC25-200-10 et seq.) of the Regulations of the State Water Control Board.

C. The issuance of a permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize injury to private property or any invasion of personal rights or any infringement of federal, state or local law or regulation.

D. Nothing in this chapter shall be construed as altering, or authorizing any alteration of, any existing riparian rights except as set forth in permits issued pursuant to this chapter. The conditions in such permits shall be in force only in those times when low stream flow, or the potential therefor, result in a declaration as provided for in subsection C of 9VAC25-220-40.

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 § 2.7, eff. June 3, 1992.

9VAC25-220-140. Variances and alternative measures.

A. Variances may be applied for, and alternative measures may be used to:

1. Prevent undue hardship; and

2. Ensure equitable distribution of water resources.

B. Alternative measures may include, but are not limited to, the following:

1. Alternative or secondary water source;

2. Water storage during times of minimum use and high stream flow;

3. Ponds, pits, ditches and basins when the sole source of water is storm water run-off; and

4. Vary water withdrawal based on time of day, the season or the stream flow.

C. The department must approve all variances and use of alternative measures.

Statutory Authority

§ 62.1-249 of the Code of Virginia.

Historical Notes

Derived from VR680-15-03 § 2.8, eff. June 3, 1992; amended, Virginia Register Volume 39, Issue 5, eff. November 23, 2022.

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