Over strong opposition, Water Control Board allows Chickahominy Power to tap into Potomac aquifer

The State Water Control Board on Monday issued a groundwater withdrawal permit to one of two hotly contested natural gas plants planned by private developers in Charles City County, despite about 1,400 public comments opposing the approval.

In a 6-0 vote, the board authorized the Chickahominy Power Station to withdraw 30 million gallons of groundwater annually from the Potomac aquifer, the source of almost all water used in the populous parts of the commonwealth that lie east of Interstate 95. 

With a daily cap on the facility’s intake of 82,000 gallons, the Department of Environmental Quality has said the anticipated impact of the withdrawal is expected to be either “undetectable” or very minimal.

The board’s decision followed a last-minute change of the withdrawal permit from a special exception to a standard permit — a move many commenters decried as an 11th-hour reversal that prevented the public from assessing its implications but board member Timothy Hayes called “a distinction without a difference.”

Previously, DEQ had justified the use of a special exception permit on the grounds that the issuance of a typical 15-year withdrawal permit would not be “consistent” with the state’s Groundwater Management Act.

That legislation, first passed in 1992, imposed restrictions on groundwater use in most of eastern Virginia after scientists found that the rate at which water was being drawn from the Potomac aquifer was not sustainable. Today, any user of more than 300,000 gallons of groundwater per month in that area must obtain a permit from the State Water Control Board, which has the power to impose limits and conditions on such withdrawals and is charged with prioritizing human consumption uses over others. 

The special exception permit originally crafted by DEQ limited Chickahominy’s approved withdrawal to seven years — a period of time intended to allow the company to connect to a waterline being planned by New Kent County — and could not be renewed.

But the department reversed course after comments from the public challenged the use of a special exception and “internal conversations” revealed DEQ could place the same restrictions on a regular permit, DEQ Office of Water Supply Director Scott Kudlas said.

“DEQ fails to explain what makes the proposed Chickahominy Power Station ‘unusual’ enough to trigger a special exception, other than the fact that it would fail to be approved for a groundwater withdrawal permit,” wrote Chesapeake Bay Foundation attorney Taylor Lilley in a Feb. 14 comment challenging the use of the special exception mechanism. “By that logic, anyone who wished to withdraw from a groundwater management area could be granted a special exception, regardless of the consequences to the aquifer.”

The revised permit DEQ came up with similarly limits Chickahominy’s withdrawal to seven years and bars a renewal of the permit.

“Under either mechanism, the intention was to authorize no more than seven years of groundwater withdrawal for this facility, correct?” asked board member Robert Wayland Monday.

“That’s correct,” Kudlas replied. “And the draft permit before you does that.”

Environmental justice concerns

A repeated concern mentioned in written comments filed with DEQ and aired during the public comment portion of Monday’s meeting was whether the state had adequately addressed the environmental justice impacts the project will have on the surrounding area of Charles City County. 

Independent analysis of the project by Stephen Metts of the New School in New York submitted to the Water Control Board found that four census tracts surrounding the proposed Chickahominy Power Station site far exceed state averages for minority and economically disadvantaged populations. In three, minorities make up more than 65 percent of the population, compared to a statewide average of 37 percent, while in two, the percentage of residents living in poverty is between 21 and 26 percent, compared to 12 percent statewide. 

DEQ, however, has maintained the groundwater withdrawal will not have a disproportionate adverse impact on economically disadvantaged or minority communities because it won’t have any adverse impact overall. 

The area that will be affected by a drawdown of the aquifer due to withdrawals only extends onto two adjacent commercial or industrial properties, a DEQ response to comments says. And “according to an internet search, neither of these two properties is minority owned and there are no existing permitted wells within the simulated (area of impact) whose water levels could be reduced by the proposed withdrawal.”

Several board members, including Hayes and Paula Jasinski, suggested environmental justice concerns linked to the project have more to do with its overall siting and air emissions, rather than the groundwater withdrawal.

The Air Pollution Control Board approved an air permit for the facility last year after hours of comments and deliberation.

“I’m sure there are environmental justice concerns related to the Chickahominy Power Station that would be the responsibility of the Air Board and maybe some others that we have, but that’s not really our purview right now,” said Hayes Monday. 

Many commenters, however, insisted environmental justice should be part of the board’s deliberations, particularly as new laws committing Virginia to incorporating environmental justice considerations into its policies and practices prepare to become law July 1. 

Gustavo Angeles, the environmental justice program coordinator for the Sierra Club’s Virginia chapter, contended that DEQ’s conclusions about the environmental justice implications of the project were not valid because the department “does not know how to do environmental justice.” 

Earlier this year, he argued, the agency hired consultants to conduct an environmental justice study of the department, “acknowledging by doing that that they are not capable of doing environmental justice for themselves.” 

On a higher level, this January the Richmond-based U.S. 4th Circuit Court of Appeals yanked a permit drafted by DEQ and issued by the state’s Air Pollution Control Board for the construction of a pipeline compressor station in the historically Black Buckingham Community of Union Hill partly on the grounds it had “thrice erred” in its treatment of environmental justice issues. 

“Environmental justice is not merely a box to be checked, and the board’s failure to consider the disproportionate impact on those closest to the compressor station resulted in a flawed analysis,” the court declared in that ruling.

Speaking Monday for the Chesapeake Bay Foundation, Lilley also cited the 4th Circuit ruling as evidence of what she called the “incontrovertible role of environmental justice in determinations of site suitability.”

“This board should take the opportunity to not repeat the mistakes of the Air Board,” she said.