Citizens send letter to DEQ Voicing Groundwater Concerns

This letter was sent by Ken Dufty and other citizens to the Department of Environmental Quality

Re: Follow-up on Groundwater Issues on the Eastern Shore of Virginia and discussion of recent data that was not available during our previous exchange.
Dear Director Paylor:

First, let us extend our deepest appreciation and gratitude for your willingness in the past to engage in an enlightening, civil and respectful exchange of information and response to our concerns regarding the sustainability of our potable drinking water supplies, especially as they relate to the unprecedented actual and proposed build-out of the poultry industry here on the Eastern Shore of Virginia.

We first contacted you regarding this issue on February 15, 2018 in which we called for a Mandamus and Injunction regarding the use of our sole source aquifer by the CAFO’s that had failed to apply for and receive a groundwater withdrawal permit before tapping our communal drinking water supplies. This requested action was petitioned pursuant to Virginia Code 62.1-268 which outlined remedies available for violation of Virginia Code 62.1-258.

We again wish to repeat our thanks for your comprehensive and prompt reply to our request dated February 23, 2018. In return, we responded to your letter on March 12, 2018 and you penned another reply to ours on April 16, 2018.

In your detailed reply to us in your April letter, under the last subheading entitled “Conclusion” you stated that you “look forward to being able to share additional information about these matters” and also stated in the body of your April 16, 2018 response that “regulatory thresholds will be maintained and the aquifer will be managed in a sustainable way.”
We appreciate this opportunity to once again engage in a positive and hopefully productive sharing of thoughts and ideas regarding these last two statements, and respectfully appreciate your audience in the manner that you have extended in previous communications regarding this critical issue.

I. In regard to the “additional information” referenced in your April 16, 2018 reply to these petitioners. Since our last exchange, thanks to in depth reporting by the Eastern Shore Post’s
reporter Linda Cicoira detailed in an article that was published on August 24, 2018 and is offered as an attachment to this letter as a PDF, we know much more about the extent of the actual and proposed groundwater withdrawals from our sole source aquifer than we did previously. In the mutual spirit of “sharing additional information” we want to highlight some of the information that we learned from the reporter’s unchallenged data assimilated from a review of DEQ’s files. As you know, in the Eastern Shore of Virginia Groundwater Management Area, any
user of groundwater that meets or exceeds 300,000 gallons of water each month is statutorily required to apply for and receive a Groundwater Withdrawal Permit. These are the only groundwater users that are regulated or indeed tracked through this regulatory program established by the Virginia General Assembly. Individual residential, commercial, industrial, and agricultural users that do not meet that monthly threshold are not regulated so therefore that total groundwater use is not known or factored into a sustainability model in a quantitative manner.

We are certain that you also know that every credible study, assessment, and forecast of sustainability of the Yorktown aquifer complex assumes that our lower (confined) drinking water supplies are recharged at a rate of 7-9 million gallons of water each day. Similarly, it is estimated that under current groundwater usage, that same amount is probably withdrawn from our drinking water supply on a daily basis.

It was therefore more than sobering to learn that the information in DEQ’s files reportedly reveals that the total groundwater withdrawal from the proposed and actual permitted users can be as high as 3.4 BILLION gallons of water annually. That equates to well over 8.5 million gallons/day and does not account for the industrial poultry CAFO’s that are on the drawing board and have not yet applied for a groundwater withdrawal permit in Accomack County. Ms. Cicoira’s article, which is reportedly based on information obtained from your department’s files, reveals that the two largest users of our shared Yorktown Aquifer reserves are the processing facilities owed by Tyson Farms, Inc. and Perdue Farms,Inc..

Indeed we believe that Perdue is permitted to withdraw over 2.5 million gallons of groundwater `each day and Tyson has a permit which, upon information and belief, allows it to use over 1 million gallons of groundwater daily. The Town of Chincoteague is listed in the article and apparently in your database as being the third largest user of our limited groundwater supply on the Eastern Shore of Virginia and is allegedly allowed to withdraw over 1 million gallons/day from the Upper and Middle Yorktown aquifer.

The record shows that the DEQ has requested and received permission from the State Water Control Board (via ruling on September 20, 2018) to issue Consent Orders to 57 CAFO’s that did not previously apply for or receive a groundwater withdrawal permit before beginning construction or indeed operation. In the Eastern Shore Post article by Ms. Cicoira it is stated that in the review of files in preparation for that article the reporter could only find Consent Orders for 54 CAFO’s (some containing as many as 24 large industrial-style broiler houses). It was estimated by the reporter that the 54 CAFO’s that had submitted an application for a Groundwater Withdrawal Permit could use as much as 430 million gallons of groundwater each year, nearly all exclusively
from our limited Yorktown reserves. That equates to well over 1.2 million gallons/day.

Note this projected or actual groundwater withdrawal is included in Ms. Cicoira’s 3.4 billion gallons/year estimate, but the other three facilities that are the subject of the Consent Order are not.
In the same issue of the Eastern Shore Post, in yet a separate article expressing concern by members of the A-NPDC Groundwater Committee over the potential overpumping of our limited Yorktown aquifers, another set of data was revealed.

To wit, Accomack County resident and retired surveyor Joseph Betit has shared his research regarding the number of poultry broiler houses that exist or are initially proposed for Accomack County.

Mr. Betit’s review of DEQ files concludes that that are existing or proposed: 8 houses in Ron Wolff’s District #2; 18 houses in Chesser’s Distric #3; 35 houses in Muhly’s District #4; 92 houses in Phillip’s District #5;, 8 houses in Crockett’s District #6; 61 houses in Hart’s District #8; and, 46 houses in Major’s District #9. This constitutes 268 large industrial style broiler houses and that number could just be a fraction of the total build-out expected in Accomack County.

In sum, actual and proposed permitted groundwater withdrawal rates as listed in DEQ files and reported in the Eastern Shore Post appear to be trending dangerously close to our total recharge of the Yorktown aquifer BEFORE more applications are received by DEQ for prospective poultry operations. Given the chatter that Tyson may be considering or contemplating applying for an additional groundwater withdrawal to support an expansion of their Temperanceville processing facility, that leads to our next discussion on the “sustainability” of our Yorktown reserves.
II. Definition of “Sustainability” and the proper application of that term The United Nation’s World Commission on the Environment and Development convened in 1987 defines the measures that must be taken in order to wear the badge of “sustainability”. Their decree declares that:
A. Renewable resources such as fish, soil, and groundwater must be used no faster than at the rate they regenerate: and, B. Pollution and wastes must be emitted no faster than the rate at which
they can be absorbed or managed.

Given the fact that our existing and proposed groundwater withdrawal rates from our confined aquifer appear to be sliding close to our total recharge rate without considering the many other uses that are not required to be regulated, it is difficult to imagine that our sensitive groundwater regime is still being tagged as ‘sustainable”, as you declared in your April 16, 2018 letter to this informal group.

Indeed, in your April 16, 2018 letter responding to the issues we raised yet again in our March 12, 2018 reply, it is admitted that the head pressure in the Yorktown aquifer appears to be in decline. While you add that regulations allow for “the use of up to 80% of the pressure head within the aquifer”, given the rise in sea level and the increasing threat of salt water intrusion into fresh water aquifers such as that underlying the Eastern Shore of Virginia, perhaps that 80% reduction in allowed pressure head decline should be rechecked, revisited and possibly recalculated. This is especially relevant in the groundwater regime on the Eastern Shore of Virginia given the fact that we could be among the very few sole source aquifers in the world that is surrounded by salt water on all four sides [i.e. to the west by the Chesapeake, to the East by the Atlantic, to the south by a combination of the two mentioned above, and underneath by highly concentrated
salt water due to the Bolide phenomenon off the coast of what is now Cape Charles].

Indeed, due to the incredibly rare Bolide (meteor) incident which resulted in highly concentrated salt levels below the fresh water reserves especially in Northampton County, the premise that we sit atop one of the most unique groundwater regimes in the world is well founded and supported by fact and evidence.
On this last point, groundwater consultant Britt McMillan stated during a recent presentation at the A-NPDC Groundwater Committee meeting that groundwater wells in the area of Cape Charles should not exceed a depth of 150’ as the incidence of accessing and pumping water with higher chloride levels than what is considered minimally protective of public health is perhaps more likely at depths below that relatively shallow depth.

In closing on this second topic, we all might want to be a bit more reserved in concluding that our groundwater use is “sustainable” given the recent information and data that Ms. Cicoira gleaned from your files. And, just to be clear, we support the statement made by the Chairman of the A-NPDC Groundwater Committee during the August meeting of that advisory body during which he said:

“I don’t want to stop anyone from raising chickens. I just want the right thing for our aquifer…they haven’t done the research to see what it would be.” Northampton County Supervisor John Coker.
We concur, and conclude on this point with a quote of the “precautionary principal”, the mantra for those who ascribe to attaining and maintaining a balanced and sustainable ecosystem. The well established and oft-quoted principal implies that:

“there is a social responsibility to protect the public from exposure to harm when scientific investigation has found a plausible risk. These protections can only be relaxed only if scientific findings emerge that no harm will result.”

Most involved in the environmental and public health protection and preservation field paraphrase the precautionary principal by holding that “when the risks of a particular activity are unclear or unknown, assume the worst and avoid the activity”.

In this case, the impact to our confined aquifer from the proposed groundwater withdrawals that could result from the unprecedented expansion of the industrial poultry operations in Accomack County is certainly unknown. In short, we will not know the extent of the risk or potential damage for years after we have allowed the withdrawals to occur. And perhaps then, as was the case in Virginia Beach during the 1970’s when the groundwater experts assured elected leaders that THEIR aquifer could sustain the increased amount of development they advocated then, it will be simply too late. As we have said before, we do not have a Lake Gaston which turned out to be VB’s half billion dollar remedy when their supposedly unlimited groundwater supplies ran dry in 1982.

III. Specific Actions we are Advocating for you and your department staff to consider:
A. Use of the Columbia Aquifer for Cooling and other water use It is well accepted that there are alternatives to the nearly sole reliance on the Yorktown aquifers to serve the industrial poultry broiler and other major operations including other agricultural uses, especially for cooling water use and facility maintenance in the broiler industry (house clean out, washing and cleansing). Indeed when there are concerns that an actual or potential groundwater withdrawal may compete with water for human consumption, Virginia Code allows your department to require “alternative or innovative approaches” to lessen the pressure on threatened or stressed aquifer reserves. See 62.1-263. It is also well established that the only available alternative to the sole reliance on the Yorktown Aqufer by the growers and other major groundwater users is the expanded use of the shallow surficial aquifer known as the Columbia Aquifer, which recharges at a rate over 100 times greater than the Upper Yorktown. Note that approximately 90% of the people on the ESVA get their prime drinking water from the same reserves that will and indeed are being tapped for the poultry broiler growing industry and other major groundwater use requiring a permit from the State Water Control Board in concert with your department and staff.

In a recent study compiled for the A-NPDC Groundwater Committee it is stated that 12% of the rainwater that falls on the ESVA recharges the shallow groundwater regime, totaling about 625 million gallons each day [ See: Potential for Salt Water Intrusion Summary on the Eastern Shore of Virginia ,A-NPDC Groundwater Committee Report citing USGS data]. Conversely, the same report estimates that only 0.1% of the rainwater falling on the ESVA makes its way into the Upper Yorktown aquifer with an estimated 9 million gallons/day recharging that confined aquifer.
In informal conversations with your staff at the public hearing held at Arcadia High School regarding the then-pending DEQ Consent Orders we understand that it is their belief that the quality of water in the Columbia Aquifer may not be suitable for cooling water use and also understand that it is staff’s conclusion that the quantity and deliverability of water available from the shallow aquifer may not be reliable enough to require operators of these industrial poultry houses to rely on this more abundant source for cooling or other uses.
However, the plant manager for Tyson, Inc. appears to have a different opinion.

Indeed, at the February 21, 2018 Accomack County Board of Supervisor’s meeting, Tyson’s Kevin Taylor announced that the company would “require farmers to use the Shore’s more abundant and shallow Columbia aquifer for water needed for cooling chicken houses”. [Eastern Shore Post, February 23, 2018, pg 1,26-28 article by Linda Cicoira]. Their declaration was trumpeted by Accomack County Supervisor Grayson Chesser who declared that Tyson’s move “is a real step forward (and said) I hope DEQ will look at this and change their regulations to “encourage growers to use the Columbia ”, [ibid].

We echo Supervisor Chesser in encouraging you and your staff to join in the rising chorus of citizens, elected officials, and business owners asking state elected officials to adopt policies specific to the ESVA and our unique groundwater regime that would create incentives for major groundwater users to access the Columbia Aquifer to the maximum extent practical.
We are fully cognizant of the fact that you or your department cannot change regulations or policies that are exclusively set by the Virginia General Assembly, but hold that if your voice as Director of the Virginia DEQ was added to this ascending refrain, the chance for success in highlighting the need for greater use of the Columbia Aquifer in our sole source aquifer regime through an amendment of regulations specific to the ESVA would be greatly enhanced.

B. Recommendation to consider shelving or delaying any future applications for major groundwater use from the Upper and Middle Yorktown Aquifers until and unless it is determined that the Yorktown Aquifers can sustain the withdrawal from current and proposed uses pursuant to the Consent Order and other current identified and quantified use.

As articulated above in our “precautionary principal” discussion, there is a much greater body of evidence that would argue that those in charge of regulating and ensuring the long term health of our critically-necessary potable water supplies should proceed with extreme caution in allowing additional depletion of this vital resource. In short, while we are expanding our knowledge base regarding the complexities of our sole-source groundwater regime, what we still don’t know far outstrips what we do.

For instance, almost every expert or consultant who has worked on our local and regional groundwater system readily admits that we do not know very much about the lateral and even vertical migration of our fresh water as it moves both vertically and horizontally through our saturated sediments and confining layers. Similarly, those same sources admit that there is alarmingly little understanding of the residual effect sea level rise and increasing lateral pressure on our fresh water lens from that rise will have on our Upper and Middle Yorktown aquifer as well as salt water intrusion from overpumping.

We believe that there is a reasonably protective approach to ensuring that the people on the Eastern Shore of Virginia will be able to rely on a clean and sustainable supply of fresh drinking water for residential and commercial use now and into the future. The frame of that approach has to be to refrain from accepting and or processing any more applications from prospective major groundwater users until all of the modeling and technical evaluations are completed on the 57 Consent Orders that have been approved for the poultry industry by the State Water Control Board.

Until that technical evaluation is completed and it is determined that our Yorktown Aquifer can withstand the addition of these proposed withdrawal amounts and rates, we are literally playing Russian Roulette with the entire future of the ESVA.

Therefore, and in closing, we are respectfully requesting that the Virginia Department of Environmental Quality: 1) join the petitioning and lobbying of our state representatives and the Virginia General Assembly in recognizing the fact that the groundwater regime on the Eastern Shore of Virginia is unique and deserves preferential and deferential treatment and associated legislation to protect it as such.

This includes passing legislation that would incentivize and prioritize increased use of the Columbia Aquifer for agricultural, commercial, and industrial use; and, 2) declare a moratorium on future large withdrawals of groundwater from the Upper and lower Yorktown Aquifers on the Eastern Shore of Virginia until and unless it is found that the current and defined prospective uses will not harm or irreversibly deplete this critical groundwater resource.

On the last point, there is no doubt that this request will be tagged by some as obstructionist behavior and indeed an attempt to thwart expansion of revenue-generating development and initiatives. Let us say that nothing could be further from the truth. In fact, we merely have to glance across the Chesapeake Bay Bridge Tunnel-just an 18 mile ride from the southern tip of Northampton County- to see what happens when regulators and elected officials fail to respond to warnings and similar requests to protect a sole source aquifer, as they did just 40 years ago in Virginia Beach. The resultant and predicted loss of the availability of clean drinking water for residential, commercial, and industrial use catapulted that area of the Commonwealth of Virginia headlong into a debilitating water and therefore economic crisis that atrophied and indeed thwarted development for over 13 years. Many regulators, including DEQ staff, apparently still
blame the depletion and indeed exhaustion of the aquifer below that region including Virginia Beach and the Hampton Roads area on a “drought”, but those who cautioned against the unchecked use of that aquifer and predicted the depletion of the same for a
decade before it failed know different.

What we are requesting in this instant petition is indeed in full support of future development, revenue generating expansion, and a vibrant and healthy economy on the Eastern Shore of Virginia. Without a reliable, sustainable, and predictable source of fresh drinking and process water available from our residential, commercial, and industrial taps, achieving that hopefully mutual goal will be unattainable.

In closing, thank you again for being willing to listen to and hopefully respond to our concerns and stated request.