Can the Virginia Department of Health require a private well construction permit, and a licensed water well contractor, to install a closed-loop geothermal heat pump system?

Plain-English summary

A state senator asked whether the Virginia Department of Health (VDH) had overreached in two ways: by requiring private well construction permits for closed-loop geothermal heat pumps, and by writing its own definition of "well" or "water well." The senator also asked whether local health departments could require installers to hold a Water Well Classification license from the Virginia Board of Contractors.

The AG answered all three in VDH's favor. The General Assembly itself directed the Board of Health, in § 32.1-176.4(C), to issue "an express geothermal permit" for the construction of wells used "solely for a closed loop geothermal heating system." That same subsection requires that "all well construction be performed by a person holding a valid, appropriate contractor license with water well classification" pursuant to Chapter 11 of Title 54.1. So permits and licensure for closed-loop geothermal wells are not VDH inventions; they are statutory mandates VDH is enforcing.

On the definition of "well," the AG concluded the Board's regulatory definition (an artificial opening through which groundwater is sought or flows) fit comfortably within the broad authority § 32.1-176.2 gave the Board to protect groundwater resources. Defining "well" was a logical prerequisite to drafting private well construction regulations.

The AG noted that the question whether a particular geothermal installation is "closed-loop" or "open-loop" had to be answered case by case. The opinion specifically addressed closed-loop direct exchange systems.

Currency note

This opinion was issued in 2011 (responding to a 2010 request). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Private Well Regulations have been the subject of multiple regulatory revisions since 2011. Definitions of "well," classes of geothermal permits, and the scope of exemptions have all evolved. A current homeowner or contractor should check 12 VAC 5-630 and the current Board of Health geothermal permit guidance.

Common questions

What's the difference between a closed-loop and an open-loop geothermal system?
At the time of this opinion: a closed-loop system circulates fluid (water, antifreeze, or refrigerant) through sealed buried pipes that exchange heat with the ground without exchanging the fluid itself. An open-loop system pulls water from a well or surface water body through the heat pump and returns it to the ground. The opinion was specifically about closed-loop systems.

Why does VDH care about a heat pump well at all?
Geothermal wells are drilled close to homes and so are physically close to drinking water wells and sewage drainfields. A poorly installed system could let pathogens migrate into aquifers if the well is sited too close to a drainfield, or could leak refrigerant from a direct-exchange closed loop into the surrounding soil. Both were specific risks the AG flagged when explaining VDH's regulatory interest.

Why isn't drilling for a quarry treated the same way?
Some drilling activities are exempt from permit requirements under 12 VAC 5-630-10 (oil and gas exploration, foundation work, elevator shafts, electrical grounding, spring development). VDH's regulatory focus is on wells drilled in close proximity to drinking water and septic systems.

Did the AG say VDH could require any license it wanted?
No. The Water Well Classification license requirement comes directly from § 32.1-176.4(C)(1), which mandates that geothermal permits include the requirement that "all well construction be performed by a person holding a valid, appropriate contractor license with water well classification." Local health departments are enforcing a statutory requirement, not freelancing.

What permit costs and delays does this create?
The opinion acknowledged the requester's concern that permitting requirements cause delay and expense, but said the General Assembly had already weighed those costs against the environmental and public-health risks and chose to require the permits.

Background and statutory framework

The Virginia Private Well Construction Act, codified at §§ 32.1-176.1 through 32.1-176.7, declares it "the policy of this Commonwealth" to require that private wells be constructed and located in a way that conforms to "reasonable requirements," because improperly constructed wells can damage aquifers and threaten public health. Section 32.1-176.4 directs the Board of Health to adopt regulations, and § 32.1-176.4(C) (added in 2009) specifically requires those regulations to include "an express geothermal permit" allowing the construction of wells used solely for closed-loop geothermal heating systems.

The express geothermal permit must include several requirements: well construction by a properly licensed contractor; a registration statement identifying owner, contractor, and property location; and a detailed site plan showing potential contamination sources. The Act makes it generally unlawful to construct a private well without a VDH permit.

The Board of Health's regulations define "water well" or "well" broadly, with exemptions for certain drilling activities. The 2010 opinion held that this definition fell within the Board's statutory discretion to "protect . . . ground water resources and to safeguard the public welfare, safety and health" under § 32.1-176.2.

The AG also leaned on the doctrine of agency deference: when a state agency has long-standing interpretation of a statute it administers, that interpretation receives "great weight." Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270 (1981); Dep't of Taxation v. Progressive Cmty. Club, 215 Va. 732 (1975). When the legislature acts (here, by adding subsection C in 2009) it is presumed to know how the agency has been construing the statute. Commonwealth v. Am. Radiator & Standard Sanitary Corp., 202 Va. 13 (1960); Miller v. Commonwealth, 180 Va. 36 (1942).

Citations

• Va. Code Ann. §§ 32.1-176.1 through 32.1-176.7 (2009)
• Va. Code Ann. § 32.1-176.2
• Va. Code Ann. § 32.1-176.3
• Va. Code Ann. § 32.1-176.4, (C), (C)(1)
• Va. Code Ann. §§ 54.1-1100 et seq.
• 12 Va. Admin. Code § 5-630-10
• 12 Va. Admin. Code § 5-630-220
• Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 276, 279 S.E.2d 400, 403 (1981)
• Dep't of Taxation v. Progressive Cmty. Club, 215 Va. 732, 739, 213 S.E.2d 759, 763 (1975)
• Commonwealth v. Am. Radiator & Standard Sanitary Corp., 202 Va. 13, 19, 116 S.E.2d 44, 48 (1960)
• Miller v. Commonwealth, 180 Va. 36, 42, 21 S.E.2d 721, 723 (1942)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/10-043-Petersen.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 13, 2011

The Honorable J. Chapman Petersen
Member, Senate of Virginia
Post Office Box 1066
Fairfax, Virginia 22038

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Senator Petersen:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether the Virginia Department of Health has exceeded the authority granted to it pursuant to the Virginia Private Well Construction Act by requiring a private well construction permit for the installation of a direct exchange geothermal heat pump system or by providing its own definition of "water well" or "well." You also ask whether local health departments are authorized to require that contractors installing wells for geothermal heat pump systems be licensed by the Virginia Board of Contractors with a Water Well Classification license pursuant to § 54.1-1100, et seq., in order to be issued a permit to install a direct geothermal heat pump.

Response

It is my opinion that the Virginia Department of Health has not exceeded the authority granted it by the Virginia Private Well Construction Act either in requiring a private well construction permit pursuant to § 32.1-176.4 and 12 VA. ADMIN. CODE § 5-630-220 for the installation of a closed-loop direct geothermal heat pump system or in drafting regulations defining "well" and "water well." Additionally, the local health departments are within their authority to require a Water Well Classification license, pursuant to §§ 32.1-176.4(C) and 54.1-1100 et seq., for the construction of wells for use in a closed loop geothermal heat pump system.

Background

A direct exchange geothermal heat pump system is a model in which a refrigerant is circulated through pipes buried in the ground or submerged in water so that it exchanges heat with the ground, rather than using a secondary heat transfer fluid, such as water or antifreeze solution, in a separate closed loop. There are four basic types of geothermal heat pump ground loop systems. Three of these — horizontal, vertical, and pond/lake — are closed-loop systems. The fourth type of system is the open-loop option. Open-loop systems use well or surface body water as the heat exchange fluid that circulates directly through the geothermal heat pump system. Once it has circulated through the system, the water returns to the ground through the well or a recharge well, or as surface discharge. Whether the geothermal heat pump system is a closed-loop system appears to be dependent upon the operation of the particular system and will need to be answered on an individual basis.

Applicable Law and Discussion

First, the authority of the Board of Health to develop regulations governing the construction of geothermal wells stems from an express mandate of the General Assembly. The General Assembly has charged the Board of Health with developing regulations that "provide for the issuance of an express geothermal permit allowing, upon proper registration and payment of application fees, the construction of wells used solely for a closed loop geothermal heating system." The Board of Health has defined a "closed-loop ground-source heat pump well" system as "a well consisting of a sealed loop of plastic pipe buried beneath the earth's surface to allow heat transfer between the fluid in the pipe and the earth." The permit is subject to specific statutory requirements, including that the "construction of the geothermal heating system [] comply with the private well regulations[.]" It is therefore clear that the Virginia Private Well Construction Act authorizes the Board of Health to oversee the construction of closed-loop geothermal heating systems.

Second, the General Assembly has declared the policy of the Commonwealth to "require that the construction and location of private wells conform to reasonable requirements" as the "improper construction of private wells can adversely affect aquifers as ground water resources in the Commonwealth." These requirements are consistent with the Commonwealth's duty to "protect these ground water resources and to safeguard the public welfare, safety and health" of its citizens. Further, "[a]ny person intending to construct a private well shall apply to the [Health] Department for and receive a permit before proceeding with [well] construction." A private well is defined in § 32.1-176.3 as "any water well constructed for a person on land which is owned or leased by that person and is usually intended for household, ground water source heat pump, agricultural use, industrial use or other nonpublic water well."

The State Board of Health has enacted regulations, in accordance with § 32.1-176.4, to "[e]nsure that all private wells are located, constructed and maintained in a manner that does not adversely affect groundwater resources, or the public welfare, safety and health." Pursuant to these authorities and the concern for the contamination of groundwater as expressed in §§ 32.1-176.4 and 32.1-176.2, the Board of Health defined a "water well" or "well" as, "any artificial opening or artificially altered natural opening, however made, by which ground water is sought or through which ground water flows under natural pressure or is intended to be artificially drawn . . . ." Whenever a person seeks to construct a well, a construction permit must first be obtained from the Commissioner of the Virginia Department of Health.

You note that other types of drilling, such as drilling for quarries, reach groundwater levels yet are not regulated by the Virginia Department of Health. It is true that certain drilling activities are exempted from permit requirements pursuant to 12 VA. ADMIN. CODE § 5-630-10, but the geothermal wells at issue here pose particular environmental concerns not posed by other drilling activities. Geothermal wells are placed in close proximity to homes and, therefore, near drinking water supplies and sewage drainfields. The Virginia Department of Health considers issues such as proximity to drinking water wells and sewage drainfields when issuing a geothermal permit, as is its duty pursuant to § 32.1-176.4. If a heat pump well is drilled through or too close to an onsite sewage system drainfield, for example, pathogens could be introduced directly into aquifers that supply drinking water. Moreover, there is a real potential for refrigerant leaking from the closed loop of a direct exchange geothermal heat pump system into the surrounding soil, which could contaminate groundwater.

The definition of a "well" in 12 VA. ADMIN. CODE § 5-630-10 as "any artificial opening or artificially altered natural opening, however made, by which ground water is sought or through which ground water flows under natural pressure or is intended to be artificially drawn" falls within the discretion given to the Board in § 32.1-176.2 to "protect . . . ground water resources and to safeguard the public welfare, safety and health." Defining a "well" is a necessary prerequisite to the Board of Health's adoption of regulations pertaining to the location and construction of private wells in the Commonwealth under § 32.1-176.4.

The General Assembly has directed the Board of Health to adopt regulations pertaining to the location and construction of private wells and has charged the Virginia Department of Health with the interpretation and enforcement of those regulations. Virginia courts will accord great weight to the interpretation of a statute by the state agency charged with its enforcement. Moreover, the General Assembly is presumed to be aware of the agency's construction of a particular statute and, when such a construction continues without legislative alteration, the legislature will be presumed to have acquiesced in it. In this instance, the General Assembly affirmed the Board of Health's regulation of geothermal heat pump systems through its Private Well Regulations by adding subsection C to § 32.1-176.4 in 2009, directing the Board of Health to include in its regulations provisions for the issuance of an express geothermal permit.

It is therefore my opinion that the statutes enacted by the General Assembly authorize the Virginia Department of Health to regulate the construction of wells used for closed loop geothermal heating systems and that it is within the Board of Health's authority to define what a "well" is for purposes of the Virginia Private Well Construction Act.

Finally, you also ask whether local health departments are authorized to require a water well classification license from the Virginia Board of Contractors as a prerequisite to obtaining a permit to install a direct geothermal heat pump. Section 32.1-176.4(C)(1) mandates that the express geothermal permit issued by the Virginia Department of Health for closed-loop geothermal heat pump systems include the "requirement that all well construction be performed by a person holding a valid, appropriate contractor license with water well classification pursuant to Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1." Given this statutory command, local health departments have not exceeded their authority in requiring the Water Well Classification license for installers of closed-loop geothermal wells. As with the initial determination of whether a permit is required for the installation of a direct exchange geothermal heating system, the type of geothermal system being employed will establish whether the requirements of § 32.1-176.4(C) apply.

Conclusion

Accordingly, it is my opinion that the Virginia Department of Health has not exceeded the authority granted it by the Virginia Private Well Construction Act either in requiring a private well construction permit pursuant to § 32.1-176.4 and 12 VA. ADMIN. CODE § 5-630-220 for the installation of a closed-loop direct geothermal heat pump system or in drafting regulations defining "well" and "water well." Additionally, the local health departments are within their authority to require a Water Well Classification license, pursuant to §§ 32.1-176.4(C) and 54.1-1100 et seq., for the construction of wells for use in a closed loop geothermal heat pump system.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General