H. B. 4501
Delegates Manchin, Hrutkay, Perdue, Schadler and Shook)
[Introduced February 12, 2008; referred to the committee on the
A BILL to amend and reenact §22-26-1, §22-26-2, §22-26-3, §22-26-5
and §22-26-6 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto three new sections,
designated §22-26-7, §22-26-8 and §22-26-9, all relating to
the Water Resources Protection and Management Act;
establishing legislative findings; defining certain terms;
continuing the water resources survey; continuing mandatory
registration of certain water users; requiring reports to the
Legislature; requiring development of a state water resources
management plan; authorizing surface and groundwater data
collection; setting forth powers and duties of the Secretary
of Department of Environmental Protection with regard to
development of water resources management plans; establishing
criteria for a state water resources management plan; and
authorizing development of regional and critical area water
resources management plans.
Be it enacted by the Legislature of West Virginia:
That §22-26-1, §22-26-2, §22-26-3, §22-26-5 and §22-26-6 of
the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that said code be amended by adding thereto three
new sections, designated §22-26-7, §22-26-8 and
read as follows:
ARTICLE 26. WATER RESOURCES PROTECTION AND MANAGEMENT ACT.
§22-26-1. Short title; legislative findings.
(a)Short title.-- This article may be known and cited as the
Water Resources Protection and Management Act.
(b)Legislative findings. --
(1)The West Virginia Legislature finds that it is the public
policy of the State of West Virginia to protect and conserve the
water resources for the state and to provide for the public
welfare. The state's water resources are vital natural resources
of the state that are essential to maintain, preserve and promote
quality of life and economic vitality of the state.
(2)The West Virginia Legislature further finds that it is
the public policy of the state that the water resources of the
state be available for the benefit of the citizens of West
Virginia, consistent with and preserving all other existing rights
and remedies recognized in common law or by statute, while also
preserving the resources within its sovereign powers for the common
(3) The West Virginia Legislature further finds that the water use survey conducted by the Department of Environmental
Protection is a valuable tool for water resources assessment,
protection and management.
(4) The West Virginia Legislature further finds that the
water resources of this state have not been fully measured or
assessed and that a program to accurately measure and assess the
state's water resources is necessary to protect, conserve and
better utilize the water resources of this state.
(5) The West Virginia Legislature further finds that the
survey information collected and analyzed by the Department of
Environmental Protection has identified the need for a statewide
water resources management plan.
(6) The West Virginia Legislature further finds that the
development of a state water resources management plan is in the
best interest of the state and its citizens and will promote the
protection of this valuable natural resource; promote its use for
the public good; and enhance its use and development for tourism,
industry and other economic development for the benefit of the
state and its citizens.
(7) The West Virginia Legislature further finds that
incomplete data collection from an inadequate groundwater
monitoring system continues to hamper efforts to study, develop and
protect the state's water resources and will be a major obstacle in
the development of a water resources management plan.
For purposes of this article, the following words have the meanings assigned unless the context indicates otherwise:
(a) "Baseline average" means the average amount of water
withdrawn by a large quantity user over a representative historical
time period as defined by the secretary.
(a) (b)"Beneficial use" means uses that include, but are
not limited to, public or private water supplies, agriculture,
tourism, commercial, industrial, coal, oil and gas and other
mineral extraction, preservation of fish and wildlife habitat,
maintenance of waste assimilation, recreation, navigation and
preservation of cultural values.
(b) (c)"Consumptive withdrawal" means any withdrawal of
water which returns less water to the water body than is withdrawn.
(c) (d)"Farm use" means irrigation of any land used for
general farming, forage, aquaculture, pasture, orchards, nurseries,
the provision of water supply for farm animals, poultry farming or
any other activity conducted in the course of a farming operation.
(d) (e)"Interbasin transfer" means the permanent removal of
water from the watershed from which it is withdrawn.
(f) "Large quantity user" means any person who withdraws over
seven hundred fifty thousand gallons of water in a calendar month
from the state's waters and any person who bottles water for resale
regardless of quantity withdrawn.
(e) (g)"Maximum potential" means the maximum designed
capacity of a facility to withdraw water under its physical and
(g) (h)"Nonconsumptive withdrawal" means any withdrawal of water which is not a consumptive withdrawal as defined in this
(f) (i)"Person", "persons" or "people" means an individual,
public and private business or industry, public or private water
service and governmental entity.
(h) (j)"Secretary" means the Secretary of the Department of
Environmental Protection or his or her designee.
(i) (k)"Water resources", "water" or "waters" means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction, and includes, without limiting the generality of the
foregoing, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands: Provided, That farm ponds, industrial
settling basins and ponds and waste treatment facilities are
excluded from the waters of the state.
(j) (l)"Watershed" means a hydrologic unit utilized by the
United States Department of Interior's geological survey, adopted
in one thousand nine hundred seventy-four, as a framework for
detailed water and related land-resources planning , denoted by an
eight digit hydrologic unit code, and by which West Virginia is, as
of the effective date of the act, divided into thirty-two separate
(k) (m)"Withdrawal" means the removal or capture of water
from a water resources of the state regardless of whether it is consumptive or nonconsumptive: Provided, That water encountered
during coal, oil, gas or other mineral extraction and diverted, but
not used for any purpose and not a factor in low-flow conditions
for any surface water or groundwater, is not deemed a withdrawal.
§22-26-3. Waters claimed by state; water resources protection
survey; registration requirements; agency
cooperation; information gathering.
(a)The waters of the State of West Virginia are hereby
claimed as valuable public natural resources held by the state for
the use and benefit of its citizens. The state shall manage the
quantity of its waters effectively for present and future use and
enjoyment and for the protection of the environment. Therefore, it
is necessary for the state to determine the nature and extent of
its water resources, the quantity of water being withdrawn or
otherwise used and the nature of the withdrawals or other uses:
Provided, That no provisions of this article may be construed to
amend or limit any other rights and remedies created by statute or
common law in existence on the date of the enactment of this
(b)The secretary shall conduct
a an ongoing water resources
survey of consumptive and nonconsumptive surface water and
groundwater withdrawals by large quantity users in this state. The
secretary shall determine the form and format of the information
submitted, including the use of electronic submissions. The survey
shall collect information covering the years two thousand three, two thousand four and two thousand five. The secretary shall
establish and maintain a statewide registration program to monitor
large quantity users of water resources of this state beginning in
two thousand six.
Beginning in the year two thousand three, every person
utilizing the state's water resources whose withdrawal from a water
resources during any month exceeds seven hundred fifty thousand
gallons Large quantity users, except those who purchase water from
a public or private water utility or other service that is
reporting its total withdrawal, shall register with the Department
of Environmental Protection and provide all requested survey
information regarding withdrawals of the water resources. Multiple
withdrawals of water from a particular state water resources that
are made or controlled by a single person and used at one facility
or location shall be considered a single withdrawal of water.
Water withdrawals for self-supplied farm use and private households
will be estimated. Water utilities regulated by the Public Service
Commission pursuant to article two, chapter twenty-four of this
code are exempted from providing information on interbasin
transfers to the extent those transfers are necessary to provide
water utility services within the state.
(d) Large quantity users who withdraw water from a West
Virginia water resource shall comply with the survey and
registration requirements of this article. Registration shall be
maintained by every large quantity user by certifying, on forms and
in a manner prescribed by the secretary, that the amount withdrawn in the previous calendar year varies by no more than ten percent
from the users' baseline average or by certifying the change in
(e) The secretary shall maintain a listing of all large
quantity users and each such user's baseline average water
(d)(f) The secretary shall make a good faith effort to obtain
survey and registration information from persons who are
withdrawing water from an in-state water resources but who are
located outside the state borders.
(e) (g)All state agencies and local governmental entities
that have a regulatory, research, planning, or other function
relating to water resources, including, but not limited to, the
State Geological and Economic Survey, the Division of Natural
Resources, the Public Service Commission, the Bureau for Public
Health, the Commissioner of the Department of Agriculture, the
Office of Emergency Services Division of Homeland Security and
Emergency Management, Marshall University, and West Virginia
University, regional, county and municipal planning authorities,
may enter into interagency agreements with the secretary and shall
cooperate by: (i) Providing information relating to the water
resources of the state; and (ii) providing any necessary assistance
to the secretary in effectuating the purposes of this article; and
(iii) assisting in the development of a state water resources
management plan. The secretary shall determine the form and format
of the information submitted by these agencies.
(f) (h)Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.
(g) (i)Persons required to participate in the survey and
registration shall provide the most accurate information available
on water withdrawal during seasonal conditions and future potential
maximum withdrawals or other information that the secretary
determines is necessary for the completion of the survey or
registration: Provided, That a coal-fired electric generating
facility shall also report the nominal design capacity of the
facility, which is the quantity of water withdrawn by the
facility's intake pumps necessary to operate the facility during a
(h) (j)The secretary shall, to the extent reliable water
withdrawal data is reasonably available from sources other than
persons required to provide data and participate in the survey and
registration, utilize that data to fulfill the requirements of this
section. If the data is not reasonably available to the secretary,
persons required to participate in the survey and registration are
required to provide the data. Registered persons that report
withdrawals on an annual basis for a period of three consecutive
years are not required to register further withdrawals unless the
amount withdrawn annually varies by more than ten percent from the
three-year average. Altering locations of intakes and discharge
points that result in an impact to the withdrawal of the water
resources by an amount of ten percent or more from the consecutive three-year baseline average shall also be reported.
(i) The secretary shall report regularly to the joint
legislative oversight commission on state water resources to advise
the commission of the progress of the survey as well as any
problems that may be encountered in conducting the survey and to
make recommendations on policy and statutory changes that may be
needed.(k) The secretary shall report annually to the Joint
Legislative Oversight Commission of State Water Resources on the
survey results. The secretary shall make a progress report every
three years on the development of the State Water Resources
Management Plan and any significant changes that may have occurred
since the survey report was submitted in two thousand six.
(j)Upon completion of the survey, the secretary shall file
a final report with the joint committee on government and finance
no later than the thirty-first day of December, two thousand six.
In preparing the final report the secretary shall consult with the
Commissioner of the Department of Agriculture, the Bureau for
Public Health, the Division of Natural Resources and the Public
Service Commission. The final report shall include the following:
(1)To the extent the information is available, the location
and quantity of all surface water and groundwater resources in this
(2)A discussion of the consumptive and nonconsumptive
withdrawals of surface water and groundwater in this state;
(3)A listing of each person whose consumptive or nonconsumptive withdrawal during any single month during the
calender year exceeds seven hundred fifty thousand gallons,
including the amount of water used, location of the water
resources, the nature of the use, location of each intake and
discharge point by longitude and latitude where available and, if
the use involves more than one watershed or basin, the watersheds
or basins involved and the amount transferred;
(4)A discussion of any area of concern regarding historical
or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
(5)Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resources;
(6)Discussion of a potential groundwater well network that
provides indicators that groundwater levels in an area are
declining or are expected to decline excessively;
(7)Potential growth areas where competition for water
resources may be expected;
(8)Any occurrence of two or more withdrawals that are
interfering or may reasonably be expected to interfere with one
(9)Discussion of practices or methods persons have
implemented to reduce water withdrawals; and
(10) Any other information that may be beneficial in providing adequate and accurate survey information, adequately assessing
water availability and withdrawal and in determining the need for
and the preparation of water resources plans.
(k) (l)In addition to any requirements for completion of
the survey established by the secretary, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.
(l) (m) Upon completion of the survey, the The secretary
shall make recommendations to the joint legislative oversight
commission created in section five of this article relating to the
need to implement implementation of a water quantity management
strategy for the state or regions of the state where the quantity
of water Resources resources are found to be currently stressed or
likely to be stressed due to emerging beneficial or other uses,
ecological conditions or other factors requiring the development of
a strategy for management of these water Resources resources. The
report shall include an analysis of the costs and benefits upon
persons potentially impacted by the implementation of a water
quantity management strategy.
(m) (n)The secretary may propose rules pursuant to article
three, chapter twenty-nine-a of this code as necessary to implement
the survey and registration or plan requirements of this article.
(n) (o)The secretary is authorized to enter into
cooperative agreements with the United States Geological Survey local, state and federal agencies and private policy or research
groups to obtain federal matching funds, conduct research and
analyze survey and registration data and other agreements as may be
necessary to carry out his or her duties under this article.
§22-26-5. Joint Legislative Oversight Commission on State Water
(a)The President of the Senate and the Speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of the water resources survey,
and registration and development of a state water resources
management plan. This commission shall be known as the Joint
Legislative Oversight Commission on State Water Resources and shall
regularly investigate and monitor all matters relating to the water
resources survey and the need for a water Resources strategy and
(b)The expenses of the commission, including the cost of
conducting the survey and monitoring any subsequent strategy and
those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other personnel
are to be approved by the Joint Committee on Government and Finance
and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in
sufficient detail for the commission to monitor the water Resources
survey and to develop recommendations resulting from the survey. The secretary shall submit an annual report to the commission by
the thirty-first day of December each year. The secretary shall
also file a final report on the water Resources survey no later
than the thirty-first day of December, two thousand six.§22-26-6. Mandatory survey and registration compliance.
(a)The water resources survey and subsequent registry will
provide critical information for protection of the state's water
resources and, thus, mandatory compliance with the survey and
registry is necessary.
(b)All large quantity users who withdraw water from a West
Virginia water resource shall complete the survey and register such
use with the Department of Environmental Protection. Any person
who fails to complete the survey or register, provides false or
misleading information on the survey or registration, or fails to
provide other information as required by this article may be
subject to a civil administrative penalty not to exceed five
thousand dollars to be collected by the secretary consistent with
the secretary's authority pursuant to this chapter. Every thirty
days after the initial imposition of the civil administrative
penalty, another penalty may be assessed if the information is not
provided. The secretary shall provide written notice of failure to
comply with this section thirty days prior to assessing the first
§22-26-7. Secretary authorized to log wells; collect data.
In order to obtain important information about the state's
surface and groundwater, the secretary is authorized to collect scientific data on surface and groundwater and to enter into
agreements with local and state agencies, the federal government
and private entities to obtain this information.
(1)Any person who installs a water extraction well, except
those wells used for a residential, single family water supply,
shall notify the secretary of his or her intent to drill a water
well no less than thirty days prior to commencement of drilling.
(2)The secretary has the authority to gather data, including
driller and geologist logs, run electric and other remote-sensing
logs and devices and perform physical characteristics tests on
nonresidential and multifamily water wells.
(3)Any person who fails to notify the secretary prior to
drilling a well or impedes collection of information by the
secretary under this section is in violation of the Water Resources
Protection and Management Act and is subject to the civil
administrative penalty authorized by section six of this article.
§22-26-8. State water resources management plan; powers and duty
(a) The Secretary of the Department of Environmental
Protection shall oversee the development of a State Water Resources
Management Plan to be completed no later than the thirtieth day of
November, two thousand thirteen. The plan shall be reviewed and
revised as needed after its initial adoption. The plan shall be
developed with the cooperation and involvement of local and state
agencies with regulatory, research or other functions relating to
water resources including, but not limited to, those agencies and institutions of higher education set forth in section three of this
article. The State Water Resources Management Plan shall be
developed utilizing the information obtained pursuant to said
section and any other relevant information available to the
(b)The secretary shall develop definitions for use in the
State Water Resources Management Plan for terms that are defined
differently by various state and federal governmental entities as
well as other terms necessary for implementation of this article.
(c)The secretary shall continue to develop and obtain the
(1)An inventory of the surface water resources of each
region of this state, including an identification of the boundaries
of significant watersheds and an estimate of the safe yield of such
sources for consumptive and nonconsumptive uses during periods of
normal conditions and drought.
(2)A listing of each consumptive or nonconsumptive
withdrawal by a large quantity user, including the amount of water
used, location of the water resources, the nature of the use,
location of each intake and discharge point by longitude and
latitude where available and, if the use involves more than one
watershed or basin, the watersheds or basins involved and the
(3)A plan for the development of the infrastructure
necessary to identify the groundwater resources of each region of
this state, including an identification of aquifers and groundwater basins and an assessment of their safe yield, prime recharge areas,
recharge capacity, consumptive limits and relationship to stream
(4) After consulting with the appropriate state and federal
agencies, assess and project the existing and future nonconsumptive
use needs of the water resources required to serve areas with
important or unique natural, scenic, environmental or recreational
values of national, regional, local or statewide significance,
including national and state parks; designated wild, scenic and
recreational rivers; national and state wildlife refuges; and the
habitats of federal and state endangered or threatened species.
(5)Assessment and projection of existing and future
consumptive use demands.
(6)Identification of potential problems with water
availability or conflicts among water uses and users including but
not limited to the following:
(A) A discussion of any area of concern regarding historical
or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area; and
(B)Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resources.
(7)Establish criteria for designation of critical water
planning areas comprising any significant hydrologic unit where existing or future demands exceed or threaten to exceed the safe
yield of available water resources.
(8) An assessment of the current and future capabilities of
public water supply agencies and private water supply companies to
provide an adequate quantity and quality of water to their service
(9) An assessment of flood plain and stormwater management
(10) Efforts to improve data collection, reporting and water
monitoring where prior reports have found deficiencies.
(11)A process for identifying projects and practices that are
being, or have been, implemented by water users that reduce the
amount of consumptive use, improve efficiency in water use, provide
for reuse and recycling of water, increase the supply or storage of
water or preserve or increase groundwater recharge and a
recommended process for providing appropriate positive recognition
of such projects or practices in actions, programs, policies,
projects or management activities.
(12)An assessment of both structural and nonstructural
alternatives to address identified water availability problems,
adverse impacts on water uses or conflicts between water users,
including potential actions to develop additional or alternative
supplies, conservation measures and management techniques.
(13)A review and evaluation of statutes, rules, policies and
institutional arrangements for the development, conservation,
distribution and emergency management of water resources.
(14)A review and evaluation of water resources management
alternatives and recommended programs, policies, institutional
arrangements, projects and other provisions to meet the water
resources needs of each region and of this state.
(15)Proposed methods of implementing various recommended
actions, programs, policies, projects or management activities.
(d)The state water resources management plan shall consider:
(1)The interconnections and relationships between
groundwater and surface water as components of a single hydrologic
(2)Regional or watershed water resources needs, objectives
(3)Federal, state and interstate water resource policies,
plans, objectives and priorities, including those identified in
statutes, rules, regulations, compacts, interstate agreements or
comprehensive plans adopted by federal and state agencies and
compact basin commissions.
(4)The needs and priorities reflected in comprehensive plans
and zoning ordinances adopted by a county or municipal government.
(5)The water quantity and quality necessary to support
reasonable and beneficial uses.
(6)A balancing and encouragement of multiple uses of water
resources, recognizing that all water resources of this state are
capable of serving multiple uses and human needs, including
multiple uses of water resources for reasonable and beneficial
(7)The distinctions between short-term and long-term
conditions, impacts, needs and solutions to ensure appropriate and
cost-effective responses to water resources issues.
(8)Application of the principle of equal and uniform
treatment of all water users that are similarly situated without
regard to established political boundaries.
(e) In November of each year, the secretary shall report to
the Joint Legislative Oversight Commission on State Water Resources
on the State Water Resources Management Plan. The report on the
water resources plan shall include benchmarks for achieving the
plan's goals and time frames for meeting them.
(f) Upon adoption of the State Water Resources Management Plan
by the Legislature, the report requirements of
section three of
this article shall be superceded by the plan and subsequent reports
shall be on the survey results and the water resources plan. If
the plan is not adopted a detailed report discussing the provisions
of this section as well as progress reports on the development of
the plan shall be submitted every three years.
§22-26-9. Regional water resources management plans; critical
(a) As part of the state water resources management plan, the
secretary may designate areas of the state as regional or critical
water planning areas for the development of regional or critical
area water resources management plans.
(b) The secretary shall establish a timetable for completion
of regional and critical area plans which may be developed.
(c) The secretary shall identify all federal and state
agencies, county commissions, municipal governments and watershed
associations that should be involved in the planning process and
any compacts or interstate agreements that may be applicable to the
development of a regional or critical area water resource
(d) The secretary shall establish the minimum requirements for
any issues to be addressed by regional and critical area plans
within twelve months of the amendment and reenactment of this
article during the two thousand eight regular session of the
Legislature. The plan requirements and issues to be addressed by
regional and critical area plans shall be consistent with the state
plan requirements of this article.
(e) The secretary shall establish timetables for the
completion of tasks or phases in the development of regional and
critical area plans. County commissions and municipal governments
may recommend changes in the order in which the tasks and phases
must be completed. The secretary shall have final authority to
determine the schedule for development of a plan.
(f) Any county or municipal government may enter into an
agreement with the secretary to designate a local planning area and
develop a local plan which may include all or part of a region.
The secretary shall assist in development of any such plan to the
extent practicable with existing staff and funding.
(g) Plans developed by a county or municipal government shall
comply with the secretary's requirements and shall be filed as part
of the State Water Resources Management Plan.
NOTE: The purpose of this bill is to authorize the
continuation of the water resources survey; authorize DEP to
develop a state water resources management plan; and authorize
designation of regional and critical area water resources planning
areas and plans.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
§§22-26-7, 8 and 9 are new; therefore, strike-throughs and
underscoring have been omitted.