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ENROLLED
Senate Bill No. 641
(By Senators Tomblin, Mr. President, Unger, Fanning, Green, Helmick, Hall,
Prezioso, Kessler, Minard, Plymale and Hunter)
___________
[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT 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 the 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
§22-26-9,
all to
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
good.
(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.
§22-26-2.Definitions.
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.
(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.
(c) "Commercial well" means a well that serves small
businesses and facilities in which water is the prime ingredient of
the service rendered.
(d) Community water system" means a public water system that
pipes water for human consumption to at least fifteen service
connections used by year-round residents or one that regularly
serves at least twenty-five residents.
(e)"Consumptive withdrawal" means any withdrawal of water
which returns less water to the water body than is withdrawn.
(f)"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.
(g) "Industrial well" means a well used in industrial
processing, fire protection, washing, packing or manufacturing of
a product excluding food and beverages or similar nonpotable uses.
(h)"Interbasin transfer" means the permanent removal of water from the watershed from which it is withdrawn.
(i) "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.
(j)"Maximum potential" means the maximum designed capacity
of a facility to withdraw water under its physical and operational
design.
(k) "Noncommunity nontransient water system" means a public
water system that serves at least twenty-five of the same persons
over six months per year. (l)"Nonconsumptive withdrawal"
means any withdrawal of water which is not a consumptive withdrawal
as defined in this section.
(m)"Person", "persons" or "people" means an individual,
public and private business or industry, public or private water
service and governmental entity.
(n)"Secretary" means the Secretary of the Department of
Environmental Protection or his or her designee.
(o) "Transient water system" means a public water system that
serves at least twenty-five transient people at least sixty days a
year."
(p) "Test well" means a well that is used to obtain
information on groundwater quantity, quality, aquifer
characteristics and availability of production water supply for
manufacturing, commercial and industrial facilities
.
(q)"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.
(r)"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.
(s)"Withdrawal" means the removal or capture of water from
water resources of the state regardless of whether it is
consumptive or nonconsumptive: Provided, That water encountered
during coal, oil, gas, water well drilling and initial testing of
water wells, 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
article.
(b)The secretary shall conduct 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
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.
(c)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 from 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) Except as provided in subsection (f) of this section,
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 usage.
(e) The secretary shall maintain a listing of all large
quantity users and each such user's baseline average water
withdrawal.
(f) The secretary shall make a good faith effort to obtain
survey and registration information from persons who are
withdrawing water from in-state water resources, but who are
located outside the state borders.
(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 Division of
Homeland Security and Emergency Management, Marshall University,
West Virginia University and 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; (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.
(h)Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.
(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
calendar day.
(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. 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 baseline average shall also be reported.
(k) The secretary shall report annually to the Joint
Legislative Oversight Commission on 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.
(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.
(m)The secretary shall make recommendations to the joint
legislative oversight commission created in section five of this
article relating to the implementation of a water quantity
management strategy for the state or regions of the state where the
quantity of water 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.
(n)The secretary may propose rules pursuant to article
three, chapter twenty-nine-a of this code as necessary to implement
the survey registration or plan requirements of this article.
(o)The secretary is authorized to enter into cooperative
agreements with 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
Resources.
(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,
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 plan.
(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.
§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
administrative penalty.
§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 community water system,
noncommunity nontransient water system, transient water system,
commercial well, industrial or test
well, shall notify the
secretary of his or her intent to drill a water well no less than
ten days prior to commencement of drilling. The ten-day notice is
the responsibility of the owner, but may be given by the drilling
contractor.
(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) The drilling contractor shall submit to the secretary a
copy of the well completion forms submitted to the Division of
Health for a community water system, noncommunity nontransient
water system, transient water system,
commercial well, industrial
or test well. The drilling contractor shall provide the well GPS
location on the well report.
(4) 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.
(5) Any well contracted for construction by the secretary for
groundwater or geological testing must be constructed at a minimum
to well design standards as promulgated by the Division of Health. Any wells contracted for construction by the secretary for
groundwater or geological testing that would at a later date be
converted to a public use water well must be constructed to comport
to state public water design standards.
§22-26-8. State Water Resources Management Plan; powers and duty
of secretary.
(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 and a representative of large quantity users. 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 secretary.
(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
following:
(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
amount transferred.
(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
base flows.
(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
areas.
(9) An assessment of flood plain and stormwater management
problems.
(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
resource.
(2)Regional or watershed water resources needs, objectives
and priorities.
(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
uses.
(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 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
planning areas.
(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
management plan.
(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.