‘Carrot and stick’ regulations aim to increase shallow aquifer use

After Virginia lawmakers moved to tighten use of the critical deep aquifers that supply drinking water to most of the state’s eastern population, new regulations designed to increase use of shallower reserves are being rolled out. 

“There’s been long-standing acknowledgment that moving people to the surficial aquifer is a way to take pressure off the confined aquifers that we’re drawing down,” said Jay Ford, the Virginia policy and grassroots adviser for the Chesapeake Bay Foundation. 

Two large deep aquifers underlie much of Virginia’s eastern regions. The Yorktown-Eastover aquifer is the sole source of drinking water for the Eastern Shore, while the Potomac aquifer serves nearly all of the roughly 4 million residents who live east of Interstate 95. Both are what are known as “confined” aquifers, or reserves of water held between layers of impermeable rock or clay, and are valued for the quality of water they contain.  

For years, state officials have worried about declining supplies in these deep aquifers. Groundwater management areas were created both on the Eastern Shore and in eastern Virginia to limit withdrawals in an effort to make sure reserves weren’t drained. 

But problems remained. Beginning in 2009, the Virginia Department of Environmental Quality began aggressively slashing the groundwater withdrawal permits of large users in the Eastern Virginia Groundwater Management Area, including two massive paper mills in Franklin and West Point.

On the saltwater-locked Eastern Shore, poultry houses, which use large quantities of water for cooling and consumption, came under scrutiny after DEQ discovered dozens were withdrawing hundreds of thousands of gallons per month without a permit. In one instance, the agency reported that the level of the Middle Yorktown-Eastover aquifer had fallen to just 4 feet above the critical surface, a point used by water supply managers that signals only 20 percent of the aquifer’s depth remains. 

Golf courses and community green spaces, which often draw significant amounts of water from the deep aquifer for irrigation, were also scrutinized. 

In response, the General Assembly began looking for answers in the shallower aquifers that lie beneath the surface of the ground and can be recharged by rainfall. If people could be persuaded — or compelled — to use this aquifer rather than the deeper confined ones, it could relieve some of the pressure on critical groundwater reserves, lawmakers concluded.

DEQ agreed: “Increasing the use of the surficial aquifer, or water table aquifer, for non-potable, non-agricultural irrigation achieves greater long-term confined aquifer sustainability,” Joseph Grist, a manager in the Office of Water Supply, told the State Water Control Board this December. 

Laws followed. In 2019, the General Assembly passed a bill from Sen. Lynwood Lewis, D-Accomack, directing the creation of new regulations that would provide incentives for water users on the Eastern Shore to get their supply from the surficial aquifer. And in 2020, Sen. Montgomery “Monty” Mason, D-Williamsburg, succeeded in passing a law forbidding anyone in a groundwater management area from sourcing water from the deep aquifer for “non-agricultural irrigation purposes” unless they could prove to DEQ that the shallow aquifer’s quality or quantity was insufficient. 

“There’s been some carrot and stick here,” said Ford. 

In December, the Water Board approved a final regulation for the Eastern Shore that allows any groundwater user to get a 15-year general permit for withdrawals from the surficial aquifer in lieu of obtaining a more expensive and complicated individual permit from the deep Yorktown-Eastover aquifer. 

“There are no known disadvantages,” Grist told the board. 

The general permit is designed to act as an incentive; no user is compelled to use the surficial aquifer. Similarly, a 2019 decision by the water board directed 45 Eastern Shore poultry farms to assess the possibility of using the shallower aquifer but did not require them to do so. 

The Delmarva Chicken Association, a trade group that represents producers on the Eastern Shore, would not comment. 

Still pending are the more restrictive regulations that will bar use of the deep aquifer both in eastern Virginia and on the Eastern Shore for non-agricultural irrigation. A draft form of these regulations were also approved by the water board this December and are now out for public comment. A final vote will be required before they can go into effect. 

While Jeff Whitmire, president of the Virginia Golf Course Superintendents Association, warned that “increased regulations which may limit access to water can be problematic for our industry, which employs over 25,000 Virginians,” he praised his industry’s involvement in the development of the regulations. 

“We are pleased that lawmakers respect our opinions and include us in the decision-making process as they develop the water quality standards for growing maintained turfgrass,” he wrote in a statement.