During a public hearing at the Nandua High School which dealt with DEQ first-time-ever pending permits for a poultry operation which gives the agency the ability monitor storm water that migrates from the facilities, questions to DEQ revealed that CAFOs operating in Accomack County have so far not applied for a groundwater withdrawal permits before the facilities were constructed. Part of the groundwater withdrawal permit involves modeling which is used to determine if the water withdrawal will create a cone of depression that might affect an adjacent fresh water supply. Concern is that since these facilities haven not applied for a permit, that modeling was never initiated.
CORRECTION: A reader sent this note to the Mirror, correcting inaccuracies reported in this article, “Couple inaccuracies I wanted to point out… 41 of the 83 farms have applied for permits already. Also the water control board has never had a poultry groundwater issue before them. DEQ is the only one that’s handled it and they’ve said they will start fining the remaining farms if they don’t apply ASAP. Also… This has been a known issue for 2 years that the groundwater committee has been discussing monthly. The gwc and Accomack planning office are why things have gone so slowly. The gwc made no formal request to the state nor did they set out a timeline. They did ask Accomack to include the groundwater permit in their CAFO packet which the county refused to do. Accomack definitely is culpable.”
Note: A cone of depression occurs in an aquifer when groundwater is pumped from a well. In an unconfined aquifer (water table), this is an actual depression of the water levels. In confined aquifers (artesian), the cone of depression is a reduction in the pressure head surrounding the pumped well.
DEQ has created an amnesty program for current operators to apply for a permit. DEQ is planning to wait until they have all the information from the CAFO’s and then run the models with all the data and perform a “cumulative impact analysis”.
Some citizens have already begun to voice concerns about the amount of groundwater industrial poultry facilities have been using without any way to accurately determine the total amount of groundwater being used. This water is currently being drawn from the sole source Upper Yorktown aquifer.
Section 62.1-258 of the Code of Virginia, which applies to any user proposing to withdraw over 300,000 gallons of groundwater/month (approximately 2 large poultry houses), states: “It is unlawful in a groundwater management area for any person to withdraw, attempt to withdraw, or allow the withdrawal of any groundwater, other than in accordance with a groundwater withdrawal permit…”.
To be authorized by the state to build and operate a CAFO, they have to apply for a CAFO permit from the agency. The application requires that the applicant provide the state with details such as the number of chickens per flock, number of flocks per year, number of houses, what they will do with the manure, how they will handle mortality.
In an email, Wardtown resident Ken Dufty told the Mirror, “Because the DEQ’s State Water Control Board failed to uphold the law and require the 83 CAFO’s either operating or under construction now to get a GWWP, every drop of water that is withdrawn from our sole source aquifer is illegal. Period. 62.1-258. Injunctive relief could be sought to stop those under construction from starting their pumps. This is a necessity. While the Blackwelder test may protect those already fully operational (because of balance of degree of harm as established in Blackwelder), it most certainly should not protect those getting ready to go against regulations in that regard…the law says that no person “shall attempt” to use groundwater (over the threshold of 300.000 gpm which is 2 houses)…unless they first get a groundwater withdrawal permit. We also know by reading 62.1-270 that the penalty for withdrawing groundwater from a source without getting a permit if the user trips the monthly threshold is $25,000/day for each and every day they withdraw groundwater without obtaining that permit. But we also know by reading 62.1-269 is that the code only envisions an injunction to be filed by the State Water Control Board….the very authority that failed to ask each CAFO to get a groundwater withdrawal permit.”
The poultry industry standard is three gallons of water as a best estimate over 43 days per bird. A facility with 2.5 houses with 45,000 birds/flock, with the addition of process water (clean out water, site maintenance) would come close to the 300,000 gpm threshold for requiring a groundwater withdrawal permit.
Paul Plante says
Having a good deal of experience in another state with what is “illegal,” versus “allowed,” despite any laws to the contrary, which then converts “illegal,” defined as “contrary to or forbidden by law, especially criminal law,” into “permitted,” or “hey, okay, do what you want and we will cover for you,” I would point out the obvious fact that by granting these chicken factories an “amnesty,” defined as “an official pardon for people who have been convicted of political offenses,” or “an undertaking by the authorities to take no action against specified offenses or offenders during a fixed period,” or “grant an official pardon to,” the State of Virginia in all of its sovereign majesty, for that is who the DEQ is, an arm of the State of Virginia whose Commissioner is appointed by the Virginia governor, and thus, is a creature of the executive branch of Virginia government, has given its blessing to these chicken factories and their supposed “illegal” withdrawals of water, which are on-going as I write these words.
The fact of the matter is that despite any laws, the chicken factories are a reality.
The water they draw 24/7 is a reality.
Any damage they are doing to the aquifer is a reality.
And the state is content to dither, and give you people a song-and-dance about an “amnesty.”
Is the state going to shut these chicken factories down after inviting them in?
Is there anyone who actually believes that?
Is the state going to make them put that water back where it was before the so-called “illegal” usage?
Will the state step in to restore the aquifer?
Of course it won’t, because it can’t.
So how about this – you people have been sold out, instead.
By the fact of the existence of the chicken factories and the amnesty, you people have been weighed in the balance, and in that weighing, you have been determined to be of less value to the state and its politicians than is the chicken factory industry.
You are expendable, the chicken factory industry is not.
You, like we to the north of you, are now living in an age of total deregulation, despite any laws to the contrary, and this is what deregulation looks like in real life.
Should this be challenged in some way?
Of course.
But how?
What logical argument can you people frame that will make the governor of Virginia and his DEQ commissioner feel bad about themselves for selling you people out to the chicken factory industry so they will revoke the amnesty and hold the operators accountable?
What political clout do you people have that can trump the political clout of the chicken factory industry, because an amnesty is in fact a political act on the part of the governor?
Those are the things you really should be thinking about, because the fact is, right now, you, like us to the north of you, are second-class citizens in your own homes as the cobweb barrier of your laws and constitution blow away in the winds of change as we engage in a race to the bottom that will make us just another ****hole nation on the face of the earth where rule of law and environmental justice are chimeras and will-o-the-wisps.
How are you going to reverse that?
In the face of this political act of amnesty, which is an official state action, what legal arguments can you people bring to bear to demonstrate to a judge that the amnesty is illegal or geyond the power of the state to grant?
As to injunctive relief, the Virginia Business Litigation Blog has this to say on the subject:
An injunction is considered an “extraordinary” remedy and is generally more difficult to obtain than an award of money damages.
Of the different types of injunctions available, the form that compels another party to perform an act (as opposed to merely preserving the status quo and prohibiting certain actions) is considered the most extraordinary and is the most difficult to obtain in court.
Whether you are in United States District Court (i.e., “federal court”) or Virginia Circuit Court (i.e., “state court”), the requirements for obtaining injunctive relief are generally the same.
The touchstone for obtaining an injunction, a form of equitable relief, is the existence of an imminent threat of “irreparable harm,” that is, harm that is of such a nature that it cannot adequately be compensated with money damages.
To obtain a preliminary injunction, it will also be necessary to convince the court that the “balance of hardships” should be decided in your favor.
This generally means a showing that the irreparable harm to be suffered by the plaintiff if an injunction is not granted outweighs the harm that the defendant would suffer if the injunction is granted.
Courts generally examine the following factors when balancing the hardships:
(i) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is not granted;
(ii) the likelihood of harm to the defendant if the preliminary injunction is granted;
(iii) the likelihood that the plaintiff will succeed on the merits when the case goes to trial;
and (iv) whether the public interest would be served by granting the preliminary injunction.
An injunction can be a powerful remedy, but difficult to secure in court.
end quotes
Without any background data that quantifies the aquifer BEFORE the so-called “illegal” drawdowns occurred, how can any of you demonstrate any kind of harm?
Miriam Riggs says
” A facility with 2.5 houses with 45,000 birds/flock…would come close to the 300,000 gallons per month threshold for requiring a groundwater withdrawal permit.”
In Accomack County we have virtually no industrial poultry farms with just 2.5 houses. There have been roughly 270 individual houses permitted over the past two years; these are located on 40+ farms which are building between 6-12 houses at each facility. It appears to me that the limits of groundwater supply are being strained to an extreme level. What state or local agency will come in to protect the public right to fresh water? Right now, the local regulations are bent toward benefit of the massive poultry industry.
Thanks for addressing this vital question in The Mirror.
Violet Browne says
Who’s groundwater supply would you suggest be strained in order to provide Northampton and Accomack Counties with their main source of protein. I know for a fact your family has enjoyed copious amounts of chicken over the years.
Don Green says
Madam, you are very talented in the art of dumbing down a discussion. Obviously, what has been in operation for the past 50 years and has suddenly expanded exponentially just may not be sustainable. The Lower Shore will realize the impending scarcity of fresh water. There will be massive adverse publicity and, most likely, civil and perhaps criminal legal action in the future. By the way, I grew up on a farm in Somerset County, Md, where I helped my father raise chickens. Maryland has relegated Somerset County, its poorest county, to being a toilet for chicken waste–as long as the Western Shore remains clean, Somerset can trash itself, which it has. I was hoping for a more enlightened attitude from Accomack’s Supervisors.
Violet Browne says
Who’s groundwater supply would you suggest be strained in order to provide Northampton and Accomack Counties with their main source of protein?
Miriam Riggs says
The poultry being produced / and scheduled to be produced in these facilities amounts to far more than the residents of Eastern Shore of Virginia could ever consume. We are looking at millions and millions of birds in any given year. Our state government has made trade arrangements to use our groundwater and clean air to produce millions of chickens to export to Qatar, China, and lord knows where else. Statistics show that a minimum of 20% of Virginia poultry is exported to other countries.
Miriam Riggs says
PS: Other export destinations for our poultry include: Vietnam, United Arab Emirates, Canada, Mexico, Japan, Saudi Arabia, Hong Kong. Should we sacrifice our local groundwater so the big producers can sell poultry all over the world?
Mary Gladden says
Chicken is not only their main source of protein, it is their main source of income….
Mary Gladden says
The seafood that is gathered and farmed is exported to many destinations as well, not feeding the citizens of The Shore.
Miriam Riggs says
If we are indeed at a point in Accomack County where we must decide between industrial poultry to profit a few, or drinking water to sustain our citizens, I would choose drinking water. After learning how serious the trade-off is, I no longer consume industrial chicken…. however there’s nothing wrong in growing your own. Tyson Foods could do a much better job of addressing these concerns ; they are putting profit above the residents of our county.
Violet Browne says
Who’s groundwater supply would you suggest be strained in order to provide Northampton and Accomack Counties with their main source of protein? You supported this industry for over 50 years, your kids were raised on it’s products.
patricia lilliston says
If I understand the correction above, Accomack County personal are allowed to sign off on an industrial poultry house complex permit with no water withdrawal permit, for more than 300,00 gallons every month. Sounds like the water choice has been made by the county. Chickens, 300,00, people 0.
Paul Plante says
Timeline of Key Events
April 1, 1993 – The Virginia Department of Environmental Quality is formed with the consolidation of the Council on the Environment, the Department of Air Pollution Control, the Department of Waste Management and the State Water Control Board.
July 1, 1993 – State legislation establishes the Virginia Pollution Prevention Program at DEQ.
July 1, 1994 – DEQ begins the Virginia Pollution Abatement general permit program for animal feeding operations, including nutrient management requirements.
August 3, 1994 – DEQ’s first regional boundaries are established, replacing almost 20 regional boundary configurations from the pre-DEQ air, waste and water agencies.
1997 – Virginia creates the Water Quality Improvement Fund, with a $10 million appropriation.
DEQ is authorized to award grants for nutrient removal technology at publicly owned treatment plants in the Chesapeake Bay watershed.
January 1998 – DEQ initiates cooperative efforts with environmental organizations to promote volunteer water quality monitoring activities across the state.
1999 – The Virginia Coastal Zone Management Program brings together state, federal and non-governmental organizations- plus private oyster industry partners- to focus on the Chesapeake Bay’s largest oyster restoration project.
July 1, 1999 – DEQ begins the Virginia Pollution Abatement Poultry Waste Management Program, including general permits for confined poultry operations.
December 1999 – “DEQ 2000,” the first-ever statewide meeting of the DEQ staff, is held in Richmond.
The two-day event focuses on the agency’s mission, strategic goals and training.
2000 – The results of several decades of cooperative research with the U.S. Geological Survey are published documenting the Chesapeake Bay impact crater.
This discovery, in which DEQ staff participates, results in the development of new approaches to managing ground water withdrawals in Virginia.
January 2000 – The Virginia Naturally 2000 initiative is unveiled in the governor’s State of the Commonwealth Address.
Virginia commits “beginning with the class of 2005” to provide a meaningful outdoor stream or Chesapeake Bay experience for every student.
June 2000 – The Chesapeake 2000 Agreement calls on Virginia and other jurisdictions to improve the Chesapeake Bay’s water quality, restore vital habitats such as underwater grasses, and implement harvest levels to keep the Bay’s ecosystem balanced.
July 1, 2000 – The General Assembly authorizes DEQ to regulate activities in nontidal wetlands, helping ensure no net loss of wetlands and promoting development that minimizes impacts on Virginia wetlands.
2001 – Federal consistency regulations are revised to state that there are no exceptions, exclusions or categorical exemptions from the consistency requirement for federal projects in Virginia’s coastal zone, based on amendments passed in 1990 to the Coastal Zone Management Act of 1972 (which became effective in Virginia in 1986).
July 1, 2003 – State legislation takes effect enabling local and regional water supply planning.
DEQ later adopts regulations requiring the development of water supply plans for each locality and the development of a state water resources plan.
December 2004 – DEQ implements a community involvement policy that commits the agency to work more closely with the public and environmental stakeholders, and to ensure broader participation in environmental decision making.
July 1, 2005 – Legislation establishes the Virginia Environmental Excellence Program to encourage business and industry to develop environmental management systems and voluntarily go beyond regulatory requirements to reduce pollution.
December 2005 – State regulations take effect limiting the amount of nitrogen and phosphorus that large wastewater treatment plants may discharge to the Chesapeake Bay and its tributaries.
This is the first time that nitrogen discharges are regulated in Virginia.
January 1, 2007 – DEQ implements one of the country’s first nutrient trading programs, allowing for the transfer of “credits” among existing wastewater treatment facilities in the Chesapeake Bay watershed to meet nutrient limits.
2008 – The General Assembly revises the project cost to $ 500,000 in the environmental impact review law, first enacted in 1973.
If a project meets or exceeds this threshold, state agencies must submit environmental impact reports to DEQ OEIR.
October 1, 2008 – State regulations take effect outlining wastewater reclamation and reuse, providing a mechanism for DEQ to promote the reuse of wastewater to further conserve drinkable water.
November 29, 2010 – Virginia submits the Phase I Watershed Implementation Plan for the impending Chesapeake Bay Total Maximum Daily Load.
DEQ developed the plan for most regulated nutrient sources subject to discharge permits.
December 2010 – EPA adopts the Chesapeake Bay Total Maximum Daily Load for nitrogen, phosphorus and sediment.
By 2025, DEQ is obligated to meet caps on discharges of nitrogen and phosphorus from municipal and industrial point sources in the Bay watershed.
July 1, 2013 – In a move to consolidate water management efforts in Virginia, DEQ assumes responsibility for storm water and other nonpoint source pollution programs.
Paul Plante says
Miriam Riggs @ February 5, 2018 at 3:23 pm says: Our state government has made trade arrangements to use our groundwater and clean air to produce millions of chickens to export to Qatar, China, and lord knows where else.
end quotes
It is not only your state government which has done so, as we are in a race to the bottom in this country in order to be able to compete with every ****hole nation out there with no regulations whatsoever that also suppress the voices of their citizens who might speak out about the abuses and corruption.
Corrupt New York state under Progressive Democrat Young Andy Cuomo has done the same thing with respect to groundwater usage up here, as can be seen from this article I submitted to a local newsletter up here to the north of you on that same subject:
“TO THE EDITOR: WHILE THEY SLEEP”
How many people in West Sand Lake today realize that on May, 4, 2017, the NYSDEC awarded TS&G a permit that will allow TS&G to withdraw 2,043,200 gallons per day of water from on-site wells and from Wynants Kill for the purpose of aggregate production, dust suppression, and tire washing.
According to the 2010 census for Sand Lake, the average family size was 3.08, so assuming 3 people per household at 40 gallons per person of water per day, that 2,043,200 gallons per day which DEC is allowing TS&G to withdraw is enough water per day for a community of 17,026 households versus a total population of 8,530 people in Sand Lake in 2010.
If TS&G now has an exclusive claim to that groundwater, which is what DEC has granted it with that permit, then it cannot at the same time serve as the groundwater supply for the existing community surrounding TS&G, which means when your well goes dry, it is what you get for living next to an industrial-sized mining operation.
As to the impacts to the surrounding community, the DEC determined that the issuance of the TS&G water withdrawal permit was a ministerial action, which means there was absolutely no consideration whatsoever given by the DEC to the impacts on the neighboring households surrounding the TS&G operation, as you people are deemed expendable by the business-friendly NYSDEC.
And since you are expendable, in this case DEC Commissioner Policy 29, Environmental Justice and Permitting (CP-29), a policy intended to promote the fair involvement of all people in the DEC environmental permit process by providing public access to DEC permit information and incorporating environmental justice concerns into DEC’s permit review process, has been determined by DEC to not apply.
end quotes
So you people down here who are getting screwed over by your DEQ aren’t alone, anyway.
You have people to the north of you also being screwed over by the New York State Department of Environmental Conservation for the same reasons – to guarantee profits to bidness, lest they go to another state where they might get a better deal from a state government as willing to sell out its citizens as New York state is, and as Virginia appears to be.
Paul Plante says
It appear from even a casual reading of Virginia Code § 62.1-269, entitled “Enforcement by injunction, etc.,” that you people on the Eastern Shore concerned about your drinking water have been sold out by your own legislature and the governor of Virginia who signed Virginia Code § 62.1-269 into law.
Check it out!
Virginia Code § 62.1-269 starts out as follows:
“Any person violating or failing, neglecting or refusing to obey any rule, regulation, order, standard or requirement of the Board pertaining to ground water, any provision of any ground water withdrawal permit issued by the Board, or any provision of this chapter MAY be compelled to obey same and to comply therewith in a proceeding instituted by the Board in any appropriate court for injunction, mandamus or other appropriate remedy.”
end quotes
Focus your attention on the phrase “may be compelled.”
As to the word “may” in a legal context, which this definitely appears to be, LegalDictionary.com gives us the following guidance:
1) a choice to act or not, or a promise of a possibility, as distinguished from “shall,” which makes it imperative.
2) in statutes, and sometimes in contracts, the word “may” must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative.
The same careful analysis must be made of the word “shall.”
Non-lawyers tend to see the word “may” and think they have a choice or are excused from complying with some statutory provision or regulation.
end quotes
Carefully read that last sentence as well.
I am a licensed professional engineer with experience not only reading laws (yes, professional engineers have to know the law to practice in substantial compliance with it which means practicing in a lawful manner) but enforcing laws, as well, and as I read that section of law, it seems to give this Board not only permission, but encouragement, as well, to ignore the law.
They are political, afterall, being appointed by the governor, as they are.
Go to the website for the State Water Control Board Overview http://www.deq.virginia.gov/Portals/0/DEQ/LawsAndRegulations/CitizenBoards/WaterBoard/StateWaterControlBoardOverview.pdf and you don’t see enforcement of the law made mention of there as a priority.
As to who is on that board, and what an important board it would be for the chicken industry to capture by loading it with their people, the website for the Board provides as follows:
Member qualifications
The governor appoints seven Virginia citizens to serve as board members.
The selection is based on merit without regard to political affiliation; and shall, by character and reputation, reasonably be expected to inspire the highest degree of cooperation and confidence in the work of the board.
Members shall, by their education, training, or experience, be knowledgeable of water quality control and regulation and shall be fairly representative of conservation, public health, business, and agriculture.
No person shall become a member of the board who receives, or during the previous two years has received, a significant portion of his income directly or indirectly from certificate or permit holders or applicants for a certificate or permit.
end quotes
If the Board sits on its hands and will not enforce the law, what good is it?
Why waste taxpayer dollars on something that is worthless to the taxpayers?
If the Board refuses to enforce the law, how is that expected to inspire the highest degree of cooperation and confidence in the work of the board?
Paul Plante says
Here to the north of you in the corrupt ****hole of New York state, which proudly boasts of an unbroken history of public corruption stretching back in time to the Cornbury Ring, circa 1701, Virginia Code § 62.1-269 is what is known as a “flim-flam” law, a law which in fact negates the concept of rule of law and in fact makes a mockery of the concept of rule of law, which is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials such as the members of the water board who are free, thanks to the “flim-flam” law known as Virginia Code § 62.1-269, to disregard the law and thereby reward those with money and power who find complying with the law too “onerous” for their tastes, which is one of the key defining characteristics of what makes a state a “****hole” state.
The concept of “Rule of Law” primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.
In this case, Virginia Code § 62.1-269 does not act as a constraint on the behavior of government officials in Virginia; to the contrary, it gives them license to disregard the law, and it gives the governor of Virginia the political out he needs to be able to do his political deals, while shifting the responsibility off of his office and over onto this non-elected, politically-appointed board that by law is not required to follow the law.
“Well, shuckins, folks, I really do feel for you people who ain’t got water to drink because my buddies in the chicken factory industry have taken it all from you, and I really feel bad about that, and I really wish I could do something for you, but you see, the law you people enacted through your elected representatives has my hands tied here, because the law you had enacted takes all that power from me and gives it over to the people I put on the water board, and your law says that they don’t have to enforce the law against my buddies in the chicken factory industry, so there is nothing I can do to make them enforce the law, even if I really wanted to.”
See how it works, people?
This is how ****hole nations are born.
And once that birthing process has been completed, as it clearly has here on the Eastern Shore or we wouldn’t be having this conversation, it is pretty much impossible to reverse the decline.
So welcome to the new world order where like us to the north of you, you are now second-class citizens in what used to be your country.
Paul Plante says
According to its own website, the water board is not a “sub-entity” of the DEQ:
Responsibilities
The State Water Control Board is responsible for administrating the Virginia Water Control Law.
The board adopts regulations and considers special orders resolving violations of its regulations and permits that have had a related public hearing.
Day-to-day administration of the board’s programs is delegated to the Department of Environmental Quality.
end quotes
If the board is delegating to the DEQ, then it would seem that the DEQ is a “sub-entity” of the water board, not vice versa.
Paul Plante says
I have recently heard of the State Water Control Board being referred to as an “ad-hoc citizens board appointed by the governor,” where “ad hoc” is taken to mean “formed, arranged, or done for a particular purpose only,” so to see what exactly that might mean, I just went to the website of the State Water Control Board http://www.deq.virginia.gov/Portals/0/DEQ/LawsAndRegulations/CitizenBoards/WaterBoard/StateWaterControlBoardOverview.pdf and this is who they say they are in their own words, as can be seen from the following:
The following information gives an overview of the State Water Control Board’s responsibilities, member qualifications and compensation, and board meetings.
end quotes
Focus for the moment on the word “responsibilities,” and think to yourself, if it happened to be you on that board, how would you view the term “responsibilities” as applied to YOU?
What does the word “responsibility” really mean?
More importantly, what does the word “responsibility” mean to a politician like the governor of Virginia, or any of his political appointees?
To me, a public health engineer, the meaning of the word “responsibility” when talking in terms of drinking water for human consumption is quite clear, and is defined as follows:
1) the state or fact of having a duty to deal with something or of having control over someone; and
2) the state or fact of being accountable or to blame for something.
end quote
As to “duty,” it is “a moral or legal obligation,” as in “it’s my duty to uphold the law,” as well as a task or action that someone is required to perform, such as seeking injunctive relief in a court of law when people or businesses are openly breaking and mocking the laws one has the duty to uphold.
But as with all things, there is also a weasel word (words or statements that are intentionally ambiguous or misleading) version of “responsibility,” as follows: the opportunity or ability to act independently and make decisions without authorization.
Is that what the State Water Control Board is doing when it fails to seek injunctive relief – exercising an ability to act independently of the law and to make decisions without the authorization of the law, all in the name of politics?
So what does the State Water Board say it is “responsible” for, in its own words?
Let’s look and see:
The State Water Control Board is responsible for administrating the Virginia Water Control Law.
end quotes
Ponder for the moment what it might mean to be responsible for administrating the Virginia Water Control Law if the governor was to suddenly select you to be on that board as an honest, responsible member of your community?
Does a responsibility for administrating the Virginia Water Control Law have tucked in there someplace a loophole or an escape clause that would actually allow you as a member of the Virginia Water Control Board to not enforce the Virginia Water Control Law for political reasons without being held to account for gross negligence?
Ponder that as you ponder the situation in Accomack County with regards to the apparent inactivity of the Water Control Board and its failure to act in the face of knowledge that the laws it is supposed to administer by law are not being upheld or enforced.
Perhaps the CCM could invite them in to respond to that question of WTF is going on here, anyway, for some much needed clarification, specially given that people from the rest of the United States are now peering in here and wondering themselves WTF is going on with this Virginia Water Control Board.
Why are they turning their backs on the people of Accomack County, Virginia?
Getting back to its own words as to its responsibilities, it informs us as follows:
The board adopts regulations and considers special orders resolving violations of its regulations and permits that have had a related public hearing.
Day-to-day administration of the board’s programs is delegated to the Department of Environmental Quality.
The board is responsible for the following:
* Setting standards of quality for state waters (Water Quality Monitoring, Information and Restoration Act) and water quality controls
* Determining requirements for treating sewage and industrial waste and for the recovery and reuse of wastewater
* Making regulations to control pollution from boats
* Considering certificates for the discharge of treated waste into state waters and for wetland excavation
* Developing coordinated state policy, plans and programs for the conservation and economic development of the state’s water resources
* Upholding regulations related to aboveground and underground storage tanks, oil discharge contingency plans and the financial responsibility of facilities and tank vessels that transport oil
* Developing regulations governing the issuance of surface water withdrawal permits
* Designating surface water management areas and issuing ground water withdrawal permits (Ground Water Management Act of 1992)
* Administering programs of state and federal financial assistance for purposes of water quality control and conservation
* Issuing procedures governing financial assistance for construction of publicly owned wastewater treatment works
end quotes
Does the Ground Water Management Act of 1992 which grants authority to the Water Control Board to issue ground water withdrawal permits also grant the Water Control Board the right to waive such permits, in their discretion?
And who are these people?
According to their website under “Member qualifications,” we have as follows:
The governor appoints seven Virginia citizens to serve as board members.
The selection is based on merit without regard to political affiliation; and shall, by character and reputation, reasonably be expected to inspire the highest degree of cooperation and confidence in the work of the board.
Members shall, by their education, training, or experience, be knowledgeable of water quality control and regulation and shall be fairly representative of conservation, public health, business, and agriculture.
end quotes
But are they?
Are they fairly representative of public health?
If so, then why would they ignore an incipient public health issue when it was right before their faces?
What’s up with that?
Any thoughts?
Any guesses?
Paul Plante says
This inaction by the Water Control Board very much seems a text-book example of what is known as “regulatory capture,” which is a form of government failure that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate the industry or sector it is charged with regulating.
As to textbook examples of regulatory capture, we have a prime example of it in a March 27, 1989 Report of the Federal Bureau of Investigation (FBI) concerning a federal Hobbs Act investigation of corruption in the Rensselaer County (State of New York) Department of Health, as follows:
“According to (name deleted), the results of the State’s investigation were that New York State laws were not being followed by the Rensselaer County Health Department, Rensselaer County laws were not being followed by the Rensselaer County Health Department, and there was very little ‘enforcement activity’ even in the face of illegal sales.”
“(Name deleted) advised that the Rensselaer County Health Department’s oversight of realty subdivisions in that county is ‘unsatisfactory’!”
“(Name deleted) also faulted the State of New York Health Department for not auditing Rensselaer County’s program.”
“(Name deleted) advised that he would not expect to find a worse county in the region (the Capital District region which comprises 17 counties)!”
“According to (name deleted), the object of any county health department is to protect the public and not to facilitate development.”
“In the case of Rensselaer County, it appears that the Rensselaer County Health Department was in business to facilitate developers and development rather than to protect the public.”
end quote
That sounds very much like what is going on down here as well, where industry profits come before public health.
Another example of regulatory capture was brought forth in a MARKETWATCH article on Sept. 30, 2014, as follows:
Author Michael Lewis summed up the tapes’ (federal reserve tape recordings) content this way:
“The Fed encourages its employees to keep their heads down, to obey their managers and to appease the banks.”
“That is, bank regulators failed to do their jobs properly not because they lacked the tools but because they were discouraged from using them.”
The New York Fed-Goldman relationship is just one of many with Wall Street firms considered to be “regulatory capture.”
That’s a short way of saying the industry and regulators have become too entangled.
end quotes
And another vivid example of regulatory capture which caused the Hudson River to the north of you to become polluted with PCB’s comes from a New York State Department of Environmental Conservation Hearing Officer’s Report, dated February 9, 1976, six years after the New York State Department of Environmental Conservation came into being as a result of the PEOPLE of the State of New York amending the state Constitution to make protection of the waters of the State a matter of statewide priority, as follows:
In this interim opinion, the hearing officer holds that General Electric Company’s (GE) discharges of PCB’s (polychlorinated biphenyls) into the upper Hudson River violate the New York Environmental Conservation Law (ECL):
GE’s PCB discharges are toxic substances capable of causing skin lesions, destroying body cells, adversely affecting reproduction and inducing cancer and death.
As an affirmative defense, GE asserts that its conduct is IMMUNIZED FROM STATE LAW PENALTIES by virtue of its being specifically AUTHORIZED IN A SERIES OF PERMITS granted under the Federal Water Pollution Control Act.
This defense must fail, for all GE permits have contained language specifically prohibiting violation of state water quality standards.
The system seems clearly to place on the would-be discharger, WHOSE INFLUENCE WITH THE AGENCY MIGHT ITSELF CAUSE OR CONTRIBUTE TO REGULATORY INSUFFICIENCY, the burden of insuring that the discharge violates no other federal, state OR LOCAL PROHIBITIONS.
end quotes
That sounds like another analogue to what is going on down here with this water control board of yours.
As Wikipedia tells us, and you don’t need to be a rocket scientist or political genius to know this, when regulatory capture occurs, the interests of firms or political groups are prioritized over the interests of the public, leading to a net loss to society as a whole.
That net loss to society caused by regulatory capture is the subject of the CCM thread “Should Sonia Sotomayor Resign in Disgrace.”
http://www.capecharlesmirror.com/news/op-ed-should-sonia-sotomayor-resign-in-disgrace/
Not surprisingly, government agencies like your water board suffering regulatory capture are called “captured agencies”.
For public choice theorists, regulatory capture occurs because groups or individuals with a high-stakes interest in the outcome of policy or regulatory decisions can be expected to focus their resources and energies in attempting to gain the policy outcomes they prefer, while members of the public, each with only a tiny individual stake in the outcome, will ignore it altogether.
Think about it, people, and be honest with yourselves, isn’t that exactly what happened down here?
Getting back to Wikipedia, regulatory capture refers to the actions by interest groups when this imbalance of focused resources devoted to a particular policy outcome is successful at “capturing” influence with the staff or commission members of the regulatory agency, so that the preferred policy outcomes of the special interest groups are implemented.
From “The Theory of Economic Regulation” by George Stigler, 1971, we have:
… as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit…
We propose the general hypothesis: every industry or occupation that has enough political power to utilize the state will seek to control entry.
In addition, the regulatory policy will often be so fashioned as to retard the rate of growth of new firms.
end quotes
Note that general hypothesis well, people, because it applies directly to you in this case – every industry, including the chicken factory industry, that has enough political power to utilize the state, will seek to control entry.
They are seeking to, and in this case, have succeeded, in controlling the entry of you people in the process of determining who has rights to the water under the surface of the land you live on.
The question you now face is how do you reverse that.
From my own experiences with regulatory capture here to the north of you, all I can say is good luck with that.
Paul Plante says
To help you better understand this subject of “regulatory capture,” it is helpful to make reference to an Emory Law essay entitled “’Regulatory Capture’: Sources and Solutions” by Scott Hempling, an advisor to public utility regulatory agencies, and an adjunct professor at Georgetown University Law Center, teaching courses on public utility law and regulatory litigation, author of “Regulating Public Utility Performance: The Law of Market Structure, Pricing and Jurisdiction” (American Bar Association 2013), as follows on the subject:
“Regulatory capture” is a ringing phrase, too casually used.
But because it is a hyperbolic phrase, it is too readily dismissed.
With a careful definition, regulatory capture can be anticipated, detected, and resisted.
end quotes
As this thread clearly demonstrates, however, while it might be possible to anticipate regulatory capture, that anticipation would have to be before the fact, not afterward, as is the case here, for once regulatory capture has been accomplished, once detected, what really can one do about it, besides pretty much nothing?
Said another way, once in place, it is very difficult or impossible to resist, as you people are presently experiencing with your state water control board.
How do you make them enforce the law, when they have determined they don’t have to or don’t want to?
Getting back to the essay, and this is important to understand, the author tells us that “regulatory capture does not include illicit acts—financial bribery, threats to deny reappointment, promises of a post-regulatory career.”
Says he:
These things all have occurred, but they are forms of corruption, not capture.
end quotes
As stated above, from a citizen’s point of view. that distinction is important to understand, the difference between corruption on the one hand and capture on the other, but as an aside, I in my turn with experience in the subject of regulatory capture would respond that for the regulatory capture to occur, the corruption first had to transpire, and successfully so.
Alpha, then omega.
Getting back to the essay, the author states as follows:
Nor is regulatory capture a state of being controlled, where regulators are robots executing commands issued by interest groups.
Regulatory capture is neither corruption nor control.
Corruption and control are actions of the regulated entity.
Regulatory capture is characterized by the regulator’s attitude, not the regulated entity’s actions.
A regulator is “captured” when he is in a constant state of “being persuaded”: persuaded based on a persuader’s identity rather than an argument’s merits.
Regulatory capture is reflected in a surplus of passivity and reactivity, and a deficit of curiosity and creativity.
end quotes
From my own extensive experience in the field of “regulation” as a public health engineer and licensed professional engineer with a duty to society to protect and safeguard life, health and property, I would have to agree with the author wholeheartedly when he states “regulatory capture is characterized by the regulator’s attitude, not the regulated entity’s actions, and a regulator is “captured” when he is in a constant state of “being persuaded” based on a persuader’s identity rather than an argument’s merits.
In the essay, the author further defines “regulatory capture” as follows:
It is evidenced by a body of commission decisions or non-decisions—about resources, procedures, priorities, and policies, where what the regulated entity wants has more influence than what the public interest requires.
The active verb “capture” signals an affirmative effort, to take someone captive.
But the noun “capture,” and the passive verb form “to be captured,” signal a state of being.
One can enter that state through one’s own actions or inactions.
One can allow oneself to be captured.
One can assist, and sustain, one’s own captivity.
end quotes
A very vivid real-world example of a textbook case of “regulatory capture” on the local level evidenced by a body of commission decisions about resources, procedures, priorities, and policies, where what the regulated entity wants has more influence than what the public interest requires, comes from the north of you, from the small town of Poestenkill, New York, which has a well- documented record of “regulatory capture” that has been proven several times in a court of law, unfortunately to no avail, since proving “regulatory capture” in a court of law in no way does anything to undo it, since “regulatory capture” is considered a political act by the courts.
That vivid example of what textbook “regulatory capture” looks like in real life where the “regulators,” in this case the Planning Board of this Town of Poestenkill, arguably one of the most corrupt small towns in the United States of America based on its record, have in fact entered that state through their own actions and inactions, willingly allowing themselves to be captured, while assisting and sustaining their own captivity comes from an October 3, 2002 decision of Rensselaer County Supreme Court Justice James B. Canfield in Matter of Plante v. Planning Board of the Town of Poestenkill et al., Rensselaer County Index No. 204938, as follows:
Petitioner Pro Se, Paul R. Plante (Plante) commenced this Article 78 proceeding challenging and seeking to annul the respondent Planning Board of the Town of Poestenkill’s (Poestenkill) April 3, 2002 resolution approving respondent Showers Enterprises, Inc.’s (Showers) application to subdivide property that is subject to a series of prior judicial determinations and determining that subdivision would have no environmental impact.
Plante further seeks to enjoin the respondent NYS Department of Environmental Conservation (DEC) from issuing any Mined Land Reclamation Permits in the property to respondent R.J. Valente Gravel, Inc. (Valente).
end quotes
The Article 78 procedure was a legal procedure by which a citizen in New York state such as myself could immediately gain access to a court of law to challenge corrupt actions by local and state officials in New York state.
As a result of my successful use of the Article 78 to challenge corruption on both the state and local levels, I am now barred from access to court in New York state which means I can no longer employ the Article 78 as a means of challenging this corruption and regulatory capture.
That is why regulatory capture remains entrenched.
Getting back to that decision:
Turning to Poestenkill’s challenged determination approving Shower’s subdivision, the Court is not authorized simply to substitute its judgment for the respondent’s.
The scope of judicial review of administrative determinations is limited to analyzing whether the respondent agency was arbitrary or capricious, that is whether it took the action without a sound basis in reason or without regard for the facts; acted in excess of its jurisdiction; in violation of lawful procedure, positive statutory or constitutional requirements; or in abuse of its discretionary power.
Barring such wrongs, the Court must confirm the determination (Matter of Pell v. Board of Education of Union Free School, 34 NY2d 222, 231).
end quotes
That serves to give one some perspective on the hurdles which must be surmounted to successfully challenge public corruption and regulatory capture by local or state government officials such as your water control board.
Getting back to that decision:
Upon reviewing the administrative record presented here, it is clear that Showers and Valente (applicants who had captured the Po9estenkill Planning Board) presented materially erroneous information to Poestenkill and that the erroneous information served as the basis for the challenged determinations.
end quotes
When the author of that essay tells us a textbook case of “regulatory capture” on the local level is evidenced by a body of commission decisions about resources, procedures, priorities, and policies, where what the regulated entity wants has more influence than what the public interest requires, there it is staring us in the face, right there in that court decision.
Getting back to the court decision where what Valente and Showers wanted from the Poestenkill Planning Board had more influence than what the public interest required, the court decision continues as follows:
Showers and Valente misinformed Poestenkill that they had an existing DEC mining permit, when they now concede that they had withdrawn their latest permit application six months before and their prior permits had all been eliminated by the prior court orders, which Showers and Valente failed to mention to Poestenkill.
Showers and Valente failed to inform Poestenkill that they still had not complied with the requirements of prior mining permits on the property, but instead had over-mined the land making it unusable for residential purposes and had not restored the land as they had promised.
Instead, Showers and Valente misinformed Poestenkill that they were attempting to comply with DEC’s engineering and design requirements, when they were not.
Showers and Valente materially mischaracterized the present zoning of the area they sought to divide into three parts as a nonconforming 19.18 acre Natural Products area which they needed to reduce to less than ten acres in order to conform to the town’s law, when Poestenkill now concedes that it was actually a 101.73 acre Residential area which would require one of the subdivisions to be rezoned into a Natural Products zone after subdivision.
Given the misinformation no reasonable determination of whether the proposed subdivision would have an environmental impact could be made by Poestenkill.
Under the circumstances, it is clear that the challenged determinations granting the subdivision and determining that doing so would have no environmental impact was made by Poestenkill in complete ignorance of the actual facts and its determination must be annulled on that ground alone.
Poestenkill’s extremely casual approach to determining environmental impact also bears notice.
The administrative record here reflects Poestenkill’s complicity with Showers and Valente in using the proposed subdivision as a means of avoiding SEQRA review by reducing the impact of the immediate proposal without inquiring into the possibility of further development at a later date.
Regardless of Showers and Valente’s misinformation, Poestenkill’s determination of no environmental impact would have to be rejected based on Poestenkill’s failure to even give the appearance of complying with SEQRA.
This Memorandum constitutes the Decision and Order of the Court.
DATED: October 3, 2002
James B. Canfield, JSC
Rensselaer County Supreme Court
end quotes
So yes, people, “regulatory capture” is very real and very pervasive in our society today, and as was stated above, and you don’t need to be a rocket scientist or political genius to know this, when regulatory capture occurs, the interests of firms or political groups are prioritized over the interests of the public, leading to a net loss to society as a whole.
So what can we as citizens really do about it, when court decisions like this one above are simply laughed at and ignored by the “captive” agencies?
That, people, is the question of the hour.
Paul Plante says
In his Emory Law essay entitled “’Regulatory Capture’: Sources and Solutions,” the author, Scott Hempling, an advisor to public utility regulatory agencies, and an adjunct professor at Georgetown University Law Center, teaching courses on public utility law and regulatory litigation, and author of “Regulating Public Utility Performance: The Law of Market Structure, Pricing and Jurisdiction” (American Bar Association 2013), raises this question of direct importance to you people affected in an adverse way by the inactions of your water control board, to wit:
If regulatory capture is a state of being, assisted and sustained by the captive, what roles are played by others?
end quotes
Consider that question carefully, people, with respect to your water control board, given that they are appointees of your governor.
Ask yourselves this: can somebody in a public capacity become “captured” in a vacuum, which is to say, without their superiors knowing about it?
According to author Scott Hempling, and again, this is of direct relevance to you people down here, “regulatory capture is enabled by those who ignore it, tolerate it, accept it or encourage it.”
In that list, he includes legislators who under-fund the commission or restrict its authority, presidents and governors who appoint commissioners unprepared for the job, human resource officials who classify staff jobs and salaries based on decades-old criteria unrelated to current needs, intervenors who treat the agency like a supermarket where they shop for personal needs, and who treat regulatory proceedings like win-loss contests rather than building blocks in a policy edifice.
In his essay on the subject of “regulatory capture,” the author further provides as follows:
These actions and inactions feed a forest where private interest trees grow tall, while the public’s needs stay small.
end quotes
And how very true that is, both down here in Virginia, where you have a state water control board that does not enforce the law so as to protect the profits of the chicken factory industry, and in corrupt New York state, as well, where due to “regulatory capture” and pure outright public corruption, which I have a difficult time differentiating from “regulatory capture,” seeing them as two sides of the same coin, at least in the field of public health, children in the low-income village of Hoosick Falls have been provided with drinking water that was contaminated with the carcinogen PFOA, again to protect profits.
So what are the “warning signs, then (although in both cases, it is quite late to be looking for warning signs)?
Says the author, if to be “captured” is to be in a constant state of being persuaded, by persuader identity rather than merits, what are the warning signs?
What are the conditions and practices that contribute to and perpetuate regulatory capture?
The answer the author provides us is quite simple: no vision and no priorities.
Says he, and based on my own experience with the subject, it is true, in a captured agency, its leaders don’t ask the big questions: What services and quality standards best serve the public?
Lacking vision and priorities (and a work plan to carry them out), the captured agency over-allocates its resources to processing parties’ petitions, while under-allocating resources to pursuing the agency’s priorities.
end quotes
As was stated above, this condition of regulatory capture can be seen quite graphically in a March 27, 1989 Report of the Federal Bureau of Investigation (FBI) concerning a federal Hobbs Act investigation of public corruption in the Rensselaer County (State of New York) Department of Health, as follows:
“According to (name deleted), the results of the State’s investigation were that New York State laws were not being followed by the Rensselaer County Health Department, Rensselaer County laws were not being followed by the Rensselaer County Health Department, and there was very little ‘enforcement activity’ even in the face of illegal sales.”
“(Name deleted) advised that the Rensselaer County Health Department’s oversight of realty subdivisions in that county is ‘unsatisfactory’!”
“(Name deleted) also faulted the State of New York Health Department for not auditing Rensselaer County’s program.”
“(Name deleted) advised that he would not expect to find a worse county in the region (the Capital District region which comprises 17 counties)!”
“According to (name deleted), the object of any county health department is to protect the public and not to facilitate development.”
“In the case of Rensselaer County, it appears that the Rensselaer County Health Department was in business to facilitate developers and development rather than to protect the public.”
end quote
In 2001, twelve (12) years later, in the case of the Rensselaer County Department of Health, which became captured circa 1978, those same conditions of regulatory capture still existed – the Rensselaer County Health Department was still in business to facilitate developers and development rather than to protect the public, and it remains that way today, thanks in some large part to Sonia Sotomayor, who had it in her power as a federal judge to put an end to it, but chose not to, instead.
In his essay, the author states as his opinion that an absence of vision in a captured regulatory agency leads to a deficit of motivation, as seems to be the case with your water board, but I would respond that there is not necessarily an absence of vision that is the problem.
For example, the deficit of motivation in the Rensselaer County Department of Health to County Health Department to protect the public’s health came about because the “vision” guiding the actions of the Rensselaer County Department of Health was purely political, and was focused on facilitating developers and development rather than to protect the public, because land developers are a source of campaign cash, and the public generally is not.
What do you think is the case down here, people?
Why is your water board looking the other way?
Why their silence and inaction?
Any guesses, anyone?