The Code of Virginia provides that it is unlawful for any person to discharge sewage, industrial waste, other waste, or any noxious or deleterious substance into state waters except in compliance with a certificate or a permit.(*1) Any person who violates this prohibition is required to notify the State Water Control Board, the Director of the Department of Environmental Quality, or the appropriate coordinator of emergency services within 24 hours and must follow up with written notice to the Director of the Department of Environmental Quality.(*2) The Department of Environmental Quality is required to share information received about unpermitted discharges with media outlets and to disseminate the information via official social media accounts and email distribution lists when either “the Virginia Department of Health determines that the discharge may be detrimental to the public health or the Department [of Environmental Quality] determines that the discharge may impair beneficial uses of state waters."(*3)

Legislation enacted following the 2020 General Assembly session in part directed the Department of Environmental Quality to:

"[R]eport to the General Assembly (i) a protocol that could be used to determine whether a discharge would have a de minimis impact on the beneficial uses of state waters and (ii) a proposed implementation procedure if subsection B of § 62.1-44.19:6 of the Code of Virginia were to be amended to require dissemination to media outlets, social media accounts, and email distribution lists of all discharges reported pursuant to subsection B of § 62.1-44.5 of the Code of Virginia except for those determined to have a de minimis impact on the beneficial uses of state waters. The Department of Environmental Quality shall consult with the Virginia Department of Health in preparing such report."(*4)

As explained below, this report utilizes a negative definition to identify unpermitted discharges that potentially have a “de minimis impact on the beneficial uses of state waters." In other words, rather than identifying criteria for unpermitted discharges that have a “de minimis impact on the beneficial uses of state waters," this report proposes a set of criteria that, if present, would result in the discharge being treated as at least potentially having more than a “de minimis impact on the beneficial uses of state waters," which would then require notification to media outlets and dissemination to official social media accounts and email distribution lists.

For purposes of the options discussed below in this report, the Department of Environmental Quality proposes that a discharge would be treated as potentially having more than a “de minimis impact on the beneficial uses of state waters," and thereby require notifications to media outlets and dissemination of information via official social media accounts and email distribution lists, in the following situations:

• Significant fish kill (with or without a documented pollution discharge)
• Shellfish bed closure by the Virginia Department of Health
• Significant non-precipitation related sewage incident reaching surface waters
• Harmful Algae Blooms (HABs) determined to be present by the Virginia Department of Health
• Concern for human contact with contamination in surface waters (either a Department of Environmental Quality notification or a Virginia Department of Health advisory)
• Contamination in surface waters that could result in water intake impacts (e.g., drinking water, industrial uses, agricultural uses)

This report evaluates four implementation options that could be used to evaluate reported unpermitted discharges and to determine whether the unpermitted discharge potentially has more than a “de minimis impact on the beneficial uses of state waters," which would then require notifications to be sent to media outlets, official social media accounts, and email distribution lists. These four options include: 1) the Human-Based Notification Solution with Existing Resources, 2) the Human-Based Notification Solution with New Resources, 3) the Human/Technology Hybrid Solution, and 4) the Technology-Based Solution. Descriptions for each option, as well as the primary strength, weakness, and fiscal impact for each option are included in Table 1 on page 3 of the report. Unless sufficient additional financial resources are provided, the Department of Environmental Quality prefers the Human-Based Notification Solution with Existing Resources option, which is the only option in this report that could be implemented within existing resources.
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(*1) Va. Code § 62.1-44.5 A.
(*2) Va. Code § 62.1-44.5 B.
(*3) Va. Code § 62.1-44.19:6 B.
(*4) 2020 Va. Acts Ch. 1182.