Suzanne H. Scheerv CW, State Water Cont.Bd ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
SUZANNE H. SCHEER,
JULIAN W. SCHEER, MR. AND MRS.
STEVEN RODGERS, BARBARA KRAMER
SILBERSIEPE, HALLIDAY AND WILLIAM
WOODBURY, MICHAEL AND MARGRETA
STEVENS, FERA AND ARMAND SIMONE AND
DEAN N. McDOWELL
MEMORANDUM OPINION * BY
v. Record No. 0095-00-4 JUDGE RICHARD S. BRAY
JULY 17, 2001
COMMONWEALTH OF VIRGINIA, ex rel.
STATE WATER CONTROL BOARD AND
COUNTY OF FAUQUIER
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Thomas D. Horne, Judge
Gail Starling Marshall for appellants.
Deborah Love Feild, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee Commonwealth of Virginia, ex rel.
State Water Control Board.
Kevin J. Burke, Deputy County Attorney (Paul S.
McCulla, County Attorney, on brief), for appellee
County of Fauquier.
Suzanne H. Scheer, et al., (appellants) appeal an order of
the trial court affirming the issuance by the State Water Control
Board (SWCB) of a Virginia Water Protection Permit (VWPP) to
Fauquier County, Virginia (Fauquier). Citing numerous perceived
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
deficiencies in the permit and underlying record, appellants
contend the SWCB "exceeded its statutory authority and violated
the statutory mandates for such a permit." Finding no error, we
affirm the trial court.
The parties are fully conversant with the voluminous and
complex record, and this memorandum opinion recites only those
facts necessary to a disposition of the appeal. In accordance
with well established principles, we review the evidence in the
light most favorable to the prevailing party below, Fauquier in
this instance.
I.
Pursuant to Code § 62.1-44.15:5, Fauquier applied to SWCB for
a VWPP to construct a concrete dam across Cedar Run, a local
stream, together with attendant undertakings and facilities (the
project), to provide a water supply to Fauquier and aid in flood
control. Designated "Cedar Run 6[,] Auburn Reservoir (Dam)," the
resulting lake would embrace a surface area of approximately 183
acres, inundate 16 acres of existing wetlands and 11,000 feet of
"stream channel," and otherwise impact Cedar Run and related
habitat and adjacent properties. Because the project involved the
"discharge of dredge or fill material" into Cedar Run, § 404 of
the Federal Clean Water Act, 33 U.S.C. § 1341, (federal act),
required a permit from the United States Corps of Engineers (the
Corps). Section 401 of the federal act precludes issuance of such
permit absent either "a certification from the State in which the
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discharge originates or will originate" that the proposed activity
will comply with the federal act, or a waiver of such
certification. 33 U.S.C. § 1341(a)(1).
A VWPP issued in accordance with Code § 62.1-44.15:5(A)
"shall constitute the certification required under § 401 of the
[federal act]," Code § 62.1-44.15:5(A). The SWCB is required to
issue such permit once "it has determined that the proposed
activity is consistent with the provisions of the [federal act]
and the State Water Control Law and will protect instream
beneficial uses." Code § 62.1-44.15:5(B). "The preservation of
instream flows for purposes of . . . the protection of fish and
wildlife resources and habitat [and] recreation . . . is a
beneficial use of Virginia's waters. . . . Domestic and other
existing beneficial uses 1 shall be considered the highest priority
uses." Code § 62.1-44.15:5(C). In resolving the issues incident
to a VWPP, the SWCB may impose conditions on the permit,
including, "but . . . not limited to, the volume of water which
may be withdrawn as a part of the permitted activity" and
"compensating mitigation for adverse impacts to wetlands."
Code§ 62.1-44.15:5(C), (E).
1
"'Beneficial use'" is defined by Code § 62.1-10 to "mean[]
both instream and offstream uses. Instream beneficial uses
include, but are not limited to, the protection of fish and
wildlife habitat, . . . recreation . . . and cultural and
aesthetic values. Offstream beneficial uses include, but are
not limited to, domestic (including public water supply) . . .
uses. Public water supply uses for human consumption shall be
considered the highest priority."
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Acting on Fauquier's application, the SWCB solicited both
public and governmental comment, conducted hearings and received
considerable documentary evidence. Accordingly, the resulting
permit was subject to numerous conditions addressing a myriad of
issues related to the project. Aggrieved by the SWCB decision,
appellants unsuccessfully sought "judicial relief" in the trial
court pursuant to Code § 62.1-44.29, a procedure governed by the
provisions of Code § 9-6.14:1 et seq., the Administrative Process
Act (APA). Unsuccessful, appellants now appeal to this Court.
See Code § 62.1-44.30.
II.
Code § 9-6.14:17 establishes "[t]he parameters of judicial
review of 'agency action.'" Envtl. Def. Fund, Inc. v. Va. State
Water Control Bd., 15 Va. App. 271, 277, 422 S.E.2d 608, 611
(1992). At the outset, the statute requires "the party
complaining of agency action to designate and demonstrate an error
of law subject to review by the court." Code § 9-6.14:17. "Such
issues of law," specifically enumerated by Code § 9-6.14:17,
"'fall into two categories: first, whether the agency . . . acted
within the scope of [its] authority, and second, whether the
decision itself was supported by the evidence.'" 2 Id. (citing
2
"[I]ssues of law" subject to review by the court include:
(i) accordance with constitutional right,
power, privilege, or immunity, (ii)
compliance with statutory authority,
jurisdiction limitations, or right as
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Johnson-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1,
7 (1988)).
Where the agency has the statutory
authorization to make the kind of decision
it did and it did so within the statutory
limits of its discretion and with the intent
of the statute in mind, it has not committed
an error of law in the first category. The
second category of error is limited to a
determination whether there is substantial
evidence in the agency record to support the
decision.
Johnson-Willis, 6 Va. App. at 242, 369 S.E.2d at 7.
"'The phrase "substantial evidence" refers to such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. Under this standard, . . . the court may
reject the agency's findings of fact only if, considering the
record as a whole, a reasonable mind would necessarily come to a
different conclusion." Aegis Waste Solutions, Inc. v. Concerned
Taxpayers of Brunswick Co., 261 Va. 395, 404, 544 S.E.2d 660,
665 (2001) (citation omitted). "In contrast, judicial review of
a 'legal issue' requires 'little deference[,]' unless it . . .
'falls within an agency's area of particular expertise.'"
provided in the basic laws as to subject
matter, the stated objectives for which
regulations may be made, and the factual
showing respecting violations or entitlement
in connection with case decisions, (iii)
observance of required procedure where any
failure therein is not mere harmless error,
and (iv) the substantiality of the
evidential support for findings of fact.
Code § 9-6.14:17.
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Envtl. Def. Fund, 15 Va. App. at 278, 422 S.E.2d at 612
(citation omitted) (emphasis added).
Thus, "agency action, even when 'supported by substantial
evidence,' must be set aside if judicial review reveals a
failure 'to observe the required procedures or to comply with
statutory authority.'" Id. (citation omitted).
However, where the question involves an
interpretation which is within the
specialized competence of the agency and the
agency has been entrusted with wide
discretion by the General Assembly, the
agency's decision is entitled to special
weight in the courts[,] . . . "and judicial
interference is permissible only for relief
against . . . arbitrary or capricious action
that constitutes a clear abuse of the
delegated discretion."
Johnson-Willis, 6 Va. App. at 244, 369 S.E.2d at 8 (citation
omitted).
Appellants' several assignments of error clearly advance
legal issues. However, such issues implicate both legal and
factual questions and "mixed question[s] of fact and law [are]
reviewable by this Court on appeal." The Country Vintner, Inc.
v. Rosemont Estates, 35 Va. App. 56, 63, 542 S.E.2d 797, 800
(2001). Thus, guided by Code § 9-6.14:17, we consider the
"[i]nterrelated factual and legal issues . . . together in the
context of the entire record," examining each "under the
appropriate standard of review" and with due deference, to
determine "'whether the result reached . . . could reasonably be
said, . . . to be within the scope of the legal authority of the
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agency.'" Envtl. Def. Fund, 15 Va. App. at 279, 422 S.E.2d at
612. Viewed accordingly, we address appellants' several
arguments seriatim.
III.
Appellants first assert that the VWPP in dispute fails to
protect "instream beneficial uses," accord "highest priority" to
existing beneficial uses, and comport with the federal act, as
mandated by Code § 62.1-44.15:5(B). In support of such
contentions, appellants rely upon a "submission" by the Virginia
Department of Game and Inland Fisheries (DGIF) concluding that
"loss of stream habitat," resulting from inundation and reduced
stream "flows and increased water temperature," 3 "probably will
adversely impact" certain "sportfish species," specifically
including the propagation of smallmouth bass, and recreational
"stream fishing" opportunities. Further, appellants maintain
that "low flows authorized by the [VWPP]" do not "protect . . .
[winter and early spring] recreational . . . canoeing" on Cedar
Run. In a related argument, appellants reason that loss of
smallmouth bass breeding habitat, an existing beneficial
instream use, impermissibly compromises the water quality of
Cedar Run.
3
DGIF speculated that periodic "cold water releases"
intended to remediate temperature increases "may result in
substantial changes in the existing warmwater aquatic
community."
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Appellants' challenges are predicated on the notion that a
VWPP in conformity with the mandates of Code § 62.1-44.15:5 must
"do no harm" to "beneficial stream uses." However, appellants'
argument ignores the manifest purpose of the permitting process
and attendant responsibility and authority of the SWCB pursuant
to the State Water Control Law, 4 Code § 62.1-44.2, et seq. The
certification mechanism of Code § 62.1-44.15:5 contemplates
alteration and disruption of beneficial stream uses resulting
from the "discharges of dredge or fill material," through the
issuance of permits for such activity in conjunction with § 404
of the federal act. However, in acting on a VWPP application,
the SWCB is directed to protect such uses through denial of a
permit, if necessary, or the imposition of appropriate
conditions. Thus, to construe the permit standard as a
precluding any "harm" would obviate the statutory purpose, an
absurd result. Branch v. Commonwealth, 14 Va. App. 836, 839,
419 S.E.2d 422, 424 (1992) ("The plain, obvious, and rational
meaning of a statute is always preferred to any curious, narrow
or strained construction, a statute should never be construed so
that it leads to absurd results.").
4
State Water Control Law is intended, in pertinent part,
"to: (1) protect existing high quality state waters . . .
promote water resource conservation, management and distribution
. . . in order to provide for the health, safety and welfare of
the present and future citizens of the Commonwealth." Code
§ 62.1-44.2.
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Here, the record discloses that Cedar Run presently suffers
from "many days when the flow is zero," a "very damaging
condition for aquatic life." "SPECIAL CONDITIONS" of the VWPP
establish a "threshold flow" to assure "that the project will
not cause [a "streamflow level"] to occur more often than it
would have occurred without the project" and a "floor flow" to
maintain a "streamflow level" "at all times." Threshold flows
imposed by the SWCB following the original "submission" by DGIF,
comported with DGIF recommendations. "[C]ontrol outlet
structures . . .[,] capable of releasing the required minimum
instream flows into Cedar Run," insure the maintenance of
required flow rates, and mandatory reporting to the SWCB
monitors compliance. Violations must be disclosed to SWCB
"within one week following discovery."
The Department of Environmental Quality (DEQ), in
commenting on issues pertaining to the VWPP, noted that
stratification of lake water oftentimes produces "warmer, less
dense oxygenated water floating on top of colder, dense,
deoxygenated water," with seasonal variations, and uncontrolled
releases could degrade "downstream" water. Accordingly, the
permit mandates "[w]ater quality standards for dissolved oxygen
and temperature shall not be violated by the [project]." An
"intake tower . . . [with] multiple intake ports" draws from
different lake levels to "control temperature" and reoxygenation
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occurs "[a]s water falls . . . to the bottom of the spillway."
Monitoring devices are required to demonstrate compliance,
together with specified reporting requirements.
An "Environmental Assessment Report" (EA) 5 prepared by the
USDA Soil Conservation Service in response to the instant VWPP
application concluded that "[f]isheries resources upstream of
the pool area will not be affected" by the project and "will be
improved in the pool and downstream," with minimum flow levels
"to insure the integrity of the downstream . . . resource," and
no increase in water temperature, resulting in "a significant
downstream water quality benefit." While the project will "have
an adverse impact on . . . terrestrial species . . . within the
pool area[,] it will provide aquatic animals an expanded
habitat."
Presently, increased water flow in Cedar Run during winter
and spring permits canoeing in areas below the dam. The "white
water" enhancement of such activity is dependent upon variable
stream conditions and, clearly, canoeing is impossible during
periods of little or no creek flow. The evidence before the
SWCB suggests that creek flows would remain seasonably cyclical,
subject to controls to avoid either the extremes of flood or
5
Appellants' contention that the EA, which supplements an
Environmental Impact Statement (EIS), not in evidence, prepared
in 1975 in response to a very different proposal, is unreliable
raises an issue of weight, not admissibility. We find the SWCB
properly admitted the EA into evidence and considered related
findings, conclusions and recommendations.
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drought, conditions inconsistent with recreational use. The
record does not support appellants' contention that post-project
stream flows would eliminate canoeing.
Thus, the record, including documentary proofs and other
evidence, clearly reflects a VWPP which protects existing
instream uses, properly issued upon consideration of facts and
circumstances before the SWCB. Although characteristics of
Cedar Run within the immediate project area are altered,
downstream water quality, habitat, fisheries resources and
recreational opportunities are either preserved or enhanced. 6
Under such circumstances, the SWCB properly exercised statutory
authority in issuance of the VWPP.
Next, appellants assert the instant VWPP improperly permits
mitigation for wetlands destroyed by the project to occur in
another watershed, thereby failing to "offset harm to water
quality" within the impacted Cedar Run watershed and, further,
approves a "[m]itigation concept," conditioned upon later
submission of the requisite "final . . . plan for DEQ approval"
in violation of 9 VAC 25-210-80(A)(2)(K).
In response to a "[m]itigation concept" submitted to the
SWCB by Fauquier, a "SPECIAL CONDITION" of the VWPP requires
6
Because existing instream beneficial uses were not
improperly compromised by the VWPP, we decline to address
appellants' subsidiary argument that the trial court
"sacrificed" such uses to "accommodate . . . proposed offstream
uses."
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Fauquier "to mitigate for cumulative loss of 16 acres of
wetlands by enhancing, creating and preserving wetlands on the
100 acre plus wetland complex . . . owned by Fauquier" in
another watershed. Details of the required mitigation are
specified in the permit and a "final plan," developed in
cooperation with the Natural Resources Conservation Service and
the Corps, must be submitted "to DEQ for review and approval
within twenty-four months of [the VWPP] issuance" date.
Code § 62.1-44.15:5(E) provides
[w]hen a [VWPP] is conditioned upon
compensatory mitigation for adverse impacts
to wetlands, the applicant may satisfy all
or part of such mitigation requirements by
the purchase or use of credits from any
[specified] wetlands mitigation bank . . .
as long as: (1) the bank is in the same
. . . river watershed[] as the impacted site
. . . .
9 VAC 25-210-90(C) requires a VWPP permittee "to provide
mitigation of . . . adverse [wetland] impact on an in kind basis
where impacts cannot be avoided."
Appellants advocate a construction of both the statute and
rule inconsistent with the clear meaning of each. Code
§ 62.1-44.15:5(E) expressly mandates wetland mitigation within
the same watershed only when such mitigation is accomplished
through "credits" purchased from a "mitigation bank," a
circumstance not present on the instant record. Nothing
suggests legislative intent to impose a like requirement on all
mitigation plans. "Where a statute is unambiguous, the plain
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meaning is to be accepted without resort to the rules of
statutory interpretation." Last v. Va. State Bd. of Med., 14
Va. App. 906, 910, 421 S.E.2d 201, 205 (1992). Similarly, a
plain reading of 9 VAC 25-210-90(C) does not reflect an intent
to confine mitigation to the watershed directly impacted by
wetland loss, but, rather, simply that such wetlands be replaced
"in kind," or by "similar" wetlands, without specifying
location. See Black's Law Dictionary 1383 (6th ed. 1990).
Water quality issues indirectly related to wetlands
destruction resulting from the project are subsumed in the
mitigation considerations, while impacts immediately attendant
to the activity are otherwise addressed by the SWCB review
process. Here, the EA indicated "[t]he plan will have
significant downstream water quality benefit," reducing
sediment, turbidity and pollution, maintaining the existing
"III-B" DEQ classification of "stream quality" and
"complimentary to the on-going programs to improve the bay."
With respect to appellants' challenge to the sufficiency of
the application, the adequacy of the "mitigation concept"
initially submitted to SWCB was an issue governed by applicable
regulations, to be determined in the exercise of the Board's
sound discretion. See Va. Real Estate Bd. v. Clay, 9 Va. App.
152, 159, 384 S.E.2d 622, 626 (1989) ("[T]he interpretation
which an administrative agency gives its regulation must be
accorded great deference and will not be set aside unless
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arbitrary and capricious."). Thus, again, appellants have not
demonstrated an error of law by the SWCB.
Lastly, appellants urge us to "vacate[]" the VWPP because
the SWCB "failed to include enforcement mechanisms for . . .
conditions" specified in the permit. However, review of the
permit discloses numerous monitoring, reporting and notification
directives included as "SPECIAL CONDITIONS." The SWCB is not
required to specify monitoring procedures which VWPP applicants
must adopt to warrant compliance with permit conditions. The
SWCB is empowered to inspect and investigate "as . . . necessary
to carry out the provisions" of State Water Control Law, Code
§ 62.1-44.13, and pursue both civil and criminal penalties for
violations, including noncompliance with VWPP certifications.
See Code § 62.1-44.20 et seq. Thus, ample safeguards assure
performance of conditions imposed on the instant permit, and
otherwise by law, with respect to construction and operation of
the project.
Accordingly, for the reasons stated, we affirm the trial
court.
Affirmed.
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