Ongoing Potomac aquifer worries drive wave of new laws

By: - February 3, 2020 12:01 am
WestRock paper mill

The WestRock paper mill at West Point, Va. (Ned Oliver/The Virginia Mercury)

From banning hydraulic fracturing in the eastern part of the state to restricting the water reserves from which certain wells can draw, lawmakers in both parties and both chambers this session are moving to protect Virginia’s vulnerable Potomac aquifer.

“It’s a significant issue,” Sen. Richard Stuart, R-Stafford, told the Senate Agriculture, Chesapeake and Natural Resources Committee Jan. 21. “It is a giant body of freshwater that the seafood industry relies on in the area I represent, and that millions of people rely on for drinking water and a lot of other activities. And if you ruin it, I guess it’s done for ten thousand years.”


Stuart was speaking about one of the most controversial issues related to the aquifer: hydraulic fracturing, or fracking, the process of extracting oil and gas by injecting a mixture of water and chemicals into bedrock.

Southwestern Virginia has fracked gas since the 1960s, with more than 8,000 wells documented by the Department of Minerals, Mines and Energy

But a 2011 study by the U.S. Geological Survey found potential untapped gas reserves farther east, in the Taylorsville Basin that underlies large parts of Caroline, King George, Essex, King William and Westmoreland counties. 

The subsequent leasing of about 84,000 acres of land for oil and gas extraction within the basin by a Texas company sparked widespread concern, largely because of fracking’s potential effects on the Potomac aquifer. 

Stretching from New Jersey south to Georgia, the 1,000-foot-deep Potomac aquifer is the primary drinking water source for about 4 million Virginians — almost half the state’s population — who live east of Interstate 95. It has also been a political flashpoint for decades, particularly after officials realized that the rate at which the region was drawing water from the reserve was unsustainable. 

Read more: In James City County, a water crisis by 2.83 million (gallon) cuts

Around 2009, at the height of the Great Recession, the Virginia Department of Environmental Quality discovered the state was rapidly depleting its most precious source of coastal groundwater: the Potomac aquifer. Virginians had been squabbling over the resource for decades, but that year new modeling showed a more dire forecast than officials had previously seen. 

Everyone agreed groundwater use needed to be cut dramatically, but no municipal water systems or large businesses wanted to give away their water rights. With the need to stabilize withdrawals becoming increasingly urgent, DEQ embarked on a years-long effort to slash permits, a task one official likened to “turning a battleship.”

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“If we get a bunch of fracking chemicals in it, and they start percolating throughout, then you’ve screwed up drinking water for 4 million people, perhaps irretrievably. … We can’t run that risk,” said Fairfax Sen. Scott Surovell, the Democratic patron of a bill to ban fracking in the Potomac aquifer region, at the Jan. 21 meeting. 

Surovell’s bill is the third time such legislation has been put forward in Virginia, following a 2018 effort by the Fairfax senator and a 2014 proposal by Stuart that would have tightly regulated the practice, and it may prove the charm. The measure sailed through the Senate, supported by all 21 Democrats and five Republicans; while there is no companion bill, it seems likely to clear the Democratic-controlled House of Delegates after crossover on Feb. 11, the date when each chamber must complete work on its own measures and send those that have been successful to the other body for consideration.

Like offshore drilling, another activity off Virginia’s coast Democrats are pushing to ban entirely, fracking has never actually occurred in the eastern portion of the state, and many of the leases signed in 2014 and 2015 have since expired. 

“There have been no permit applications sought,” David Clarke, a lobbyist for the Virginia Oil and Gas Association, told lawmakers earlier this month. “We testified (in prior sessions) we didn’t think the bill was necessary. We believe that’s still true today.”

The oil and gas industry has consistently argued that fracking is safe and strictly regulated both at the federal level and, in Virginia, through DMME. But several Virginia counties have nevertheless banned or otherwise restricted the practice (Stuart, as attorney for Westmoreland County, assisted that locality in passing its regulations).

If signed into law, the ban would replace the patchwork of limits and prohibitions in place — but just in those areas of eastern Virginia underlain by the Potomac aquifer.

Aquifer sustainability

Fracking isn’t the only aquifer issue troubling legislators this session, though. The sustainability of the water supply is also continuing to cause headaches, even after an aggressive multi-year push by the Department of Environmental Quality to curb withdrawals from the aquifer’s biggest users.

“Some of the improvements that have been made since the last water deal seem to show that it is working,” Sen. Monty Mason, D-Williamsburg, told a Senate committee Jan. 21. 

But lawmakers indicated work on the issue remains unfinished.

In the Senate, Mason is championing several water supply measures. One would reestablish the working group on aquifer sustainability that was active between 2015 and 2018 as an advisory body.

Another, which narrowly squeaked through the Senate on a mostly party-line 20-19 vote (Joe Morrissey, D-Richmond, opposed the bill, while Tommy Norment, R-James City, supported it), would minimize deep aquifer use for non-agricultural purposes — a recommendation of the earlier working group.

The bill would require anyone drilling a well in a groundwater management area for non-agricultural irrigation to tap into the surficial aquifer, the shallowest of all groundwater sources and the quickest to recharge. 

No existing wells or any future well used for drinking water would be affected. The proposal also gives some leeway to users: if DEQ determines the well is for a “beneficial use” and that the surficial aquifer is inadequate, a deeper one can be dug.

That concession earned Mason’s bill the support of golf courses, an industry that has been wary of aquifer restrictions because of its reliance on high-quality water to maintain turf.

“We wanted to have a mechanism in there where that was at least recognized that there could be times when the surficial quality is not good enough,” Virginia Golf Course Superintendents Association lobbyist Robert Bohannon told a Senate subcommittee. “We feel comfortable that there is a process in place and that that has been taken into consideration.”

But while Mason won over enough senators to his proposal this year, he still failed to gain the support of Stuart, an outspoken advocate of the need to protect not just the Potomac aquifer’s quality but also its supply.

In vigorous speeches in committee and on the Senate floor, Stuart declared he wouldn’t vote for Mason’s measure because he feared it would distract attention from the main threat to the aquifer’s sustainability: two massive paper mills in West Point and Franklin that are the largest groundwater users in the eastern Virginia management area.

“The work group was afraid to tackle the real problem. And the real problem is two paper mills that are depleting the aquifer,” Stuart told the Senate. “The more we adopt these feel-good measures, the more we kick the can down the road.”

While much of the concern over the aquifer this session has come out of the Senate, it isn’t completely absent from the House. There, the plight of James City County, which derives all of its drinking water from the aquifer and is one of the largest users in the region, sparked attention from Republican Del. Keith Hodges of Urbanna.

Hodges’ bill, like Mason’s surficial aquifer measure, also is tied to recommendations from the 2015-18 working group — in this case, the need for “innovative” solutions to decrease groundwater dependency.

It is also tailored to resolve a multi-year conflict between the private owners of Cranston’s Mill Pond in James City County, who have been seeking a withdrawal permit in order to sell the rights to the beleaguered county, and DEQ, which has said such a permit would go against state code and agency policy of not granting approvals when no end user has been identified. (James City County has not formally committed to any deal to get water from Cranston’s Mill Pond.)

“Here we have an innovative solution, but without an end user, and DEQ doesn’t have the authority to issue this permit,” Hodges told a House subcommittee Jan. 27. To remedy the problem, his bill would create a provisional water withdrawal permit, which he said would “facilitate … the identification of alternative water sources” in management areas. 

“This is simply a new tool that allows private facilities like ours to go out and determine whether or not we’ve got enough water that’s usable for somebody,” said Jeff Corbin of environmental firm Restoration Systems, which owns Cranston’s Mill Pond, during the same discussion. “We can’t do that until we have a permit.”

But while the subcommittee signed off on the measure, keeping it alive for committee debate, Hodges’ bill faces stiff resistance from Gov. Ralph Northam’s administration, which opposes it.

The reason for the opposition, DEQ Director David Paylor told lawmakers, is that the bill “would for the first time establish the ability for private entities to have a speculative withdrawal.”

“That is contrary to Virginia water policy in code, which requires us to balance all beneficial uses, to optimize all of the public resources,” said Paylor. “It’s not a private resource. It’s a public resource that we have to oversee.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists. She is a graduate of the College of William and Mary. Contact her at [email protected]