The Chesapeake Bay Foundation, Inc. v. Commonwealth of Virginia, etc. ( 2014 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Petty, McCullough and Chafin
Argued at Richmond, Virginia
THE CHESAPEAKE BAY FOUNDATION, INC.
AND CITIZENS FOR STUMPY LAKE, INC.
MEMORANDUM OPINION* BY
v. Record No. 1897-12-2 JUDGE STEPHEN R. McCULLOUGH
APRIL 22, 2014
COMMONWEALTH OF VIRGINIA, ex rel.
VIRGINIA STATE WATER CONTROL BOARD,
DAVID K. PAYLOR, DIRECTOR, VIRGINIA
DEPARTMENT OF ENVIRONMENTAL QUALITY
AND TRI-CITY PROPERTIES, LLC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Robert L. Wise (Bowman and Brooke LLP, on briefs), for
appellants.
David C. Grandis, Assistant Attorney General; Paul R. Schmidt
(Kenneth T. Cuccinelli, II, Attorney General; Elizabeth A. Andrews,
Senior Assistant Attorney General; Poole Mahoney, P.C., on brief),
for appellees.
The present appeal is the latest chapter in litigation that has spanned more than a decade.
Raising a number of issues, the Chesapeake Bay Foundation and Citizens for Stumpy Lake appeal
from a permit issued by the State Water Control Board. The permit authorizes Tri-City to drain
wetlands as it develops a mixed-use, master-planned community in the City of Chesapeake.1
Judge McCullough would affirm the Board on the merits. Judge Chafin concludes that we
lack jurisdiction over this appeal because the Foundation’s appeal is untimely. She would dismiss
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
For the sake of simplicity, I will refer to the Chesapeake Bay Foundation as the
Foundation and to the State Water Control Board as the Board.
the appeal, which would result in affirmance. Consequently, although the Court does not issue a
controlling opinion, the judgment of the circuit court is affirmed.
BACKGROUND
I. ECONOMIC GROWTH IN CHESAPEAKE
Forecasts call for the Greenbrier area of the City of Chesapeake to add nearly eight
thousand new jobs by the year 2026. Beginning in the mid-1980s, as various related companies
anticipated this growth and the need for housing in the area, they began to acquire parcels of land
with a view to develop a master-planned, mixed-use community. It is undisputed that a principal
of these companies is also a principal of Tri-City, one of the appellees in this case. These
parcels, purchased at a total cost in excess of $15 million, ultimately were consolidated into a
428.2-acre parcel.
This 428.2-acre parcel is located north of Elbow Road and east of Centerville Turnpike in
Chesapeake. Of the 428.2-acre site, a majority of the acreage consists of palustrine,2 forested
wetlands, with the remainder consisting of uplands. The property drains in two separate
directions, with approximately 61% of the property draining north into Stumpy Lake. The
remaining area drains into Gum Swamp.
Stumpy Lake, originally constructed as a reservoir for the City of Norfolk, was purchased
by the City of Virginia Beach in 2001 for $13 million. It now serves as a nature preserve and
recreational area. The area also provides habitat for threatened or endangered species, including
the bald eagle, canebrake rattlesnake, and the Dismal Swamp southeastern shrew.
The area around Stumpy Lake is now heavily developed. That development has
decreased the habitat available for a number of species, affected the water quality in Stumpy
2
“Palustrine” means “being or made up of marsh.” Webster’s Third New International
Dictionary 1628 (1981).
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Lake, and reduced wetlands. Wetlands function as natural filters, floodwater storage zones,
groundwater recharge areas, sediment traps, and provide habitat for wildlife.
The City of Chesapeake approved the zoning for the project and approved the
development master plan in 1989. As part of this process, Tri-City proffered 20 acres of the
parcel to be set aside as a park. Original development plans called for 433 single-family
residential units. The City of Chesapeake’s 1995 conditional rezoning of this area limited the
number of single-family units to 284. As a part of the 1995 rezoning, Tri-City made a number of
proffers, including road improvements, dedication of a school site, a 20-acre park, and a fire
station site.
II. TRI-CITY APPLIES FOR A PERMIT TO DRAIN OR FILL WETLANDS
TO BUILD A MASTER-PLANNED, MIXED-USE COMMUNITY
Tri-City initially applied for a permit with the Board on September 14, 2000. The
proposal was for a master-planned, mixed-use community that would include both commercial
and residential development, consisting of single-family homes, townhomes, condominiums, and
apartments. Initially, Tri-City’s development plan would have impacted all of the site’s 253.5
acres of wetlands.
At the time Tri-City applied for this permit, the United States Army Corps of Engineers
(the Corps) had not delineated the wetlands on the site. Therefore, Tri-City hired a private firm,
Environmental Specialties Group (ESG), to perform this task. Following ESG’s initial
delineation of wetlands, Bert W. Parolari, Jr., the Water Resource Programs Manager for the
Department of Environmental Quality, wrote a detailed letter to Tri-City on April 5, 2001
questioning whether an approximately 52-acre area, designated as uplands in the ESG wetlands
delineation, contained more wetlands than noted on ESG’s delineation. Parolari requested a
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re-delineation. ESG reconsidered and later revised its delineation, adding additional wetlands.3
The record reflects the detailed measurements ESG performed in making its delineation. On
March 27, 2002, the firm certified that the site contained 253.5 acres of palustrine, forested
wetlands and 174.7 acres of uplands. The Virginia Department of Environmental Quality, the
DEQ, asked the Corps to verify the delineation performed by ESG. The Corps responded by
letter dated March 27, 2002, but did not make its own delineation at the time or object to the
delineation made by ESG.
On October 7, 2002 and March 25, 2003, the Board held public hearings in response to
the permit application. Following the March 25, 2003 hearing, the Board voted to defer action
on the permit to allow staff time to review materials submitted and answer questions that were
raised. The Board entertained additional limited comments at a meeting held on October 28,
2003. The Board received extensive written and verbal comments in opposition to and in
support of the project.
The Foundation leveled a number of criticisms at the project. The Foundation also
submitted alternative plans for the development of the parcel, which Tri-City rejected as
unfeasible. In addition to these criticisms, a number of citizens expressed their concern at the
threat the project might pose to Stumpy Lake. William Pratt, the President of Citizens for
Stumpy Lake, exemplifies this concern. In his view, the project poses a threat to the water
quality in the area and will reduce habitat for fish and wildlife.
The City of Virginia Beach also had reservations about the project and the impact it
might have on the wildlife and water quality of Stumpy Lake. In contrast, the City of
3
The wetlands delineation does not include wetlands lost to ditching activity that
occurred prior to the application.
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Chesapeake supported the project as being “beneficial to the long-term economic development of
the City.”
State and federal agencies provided comments. The Fish and Wildlife Service of the
United States Department of the Interior expressed a number of concerns about the project, as
did the United States Environmental Protection Agency (EPA) and the Corps. The Virginia
Department of Game and Inland Fisheries concluded that the project, as ultimately approved by
the Board, would not imperil endangered or threatened species and, for some of those species,
would result in a gain in habitat.
Throughout the permitting process, the DEQ and Tri-City engaged in negotiations to
reduce the impact of the project. As a result, Tri-City agreed to make a number of significant
changes to the project to lessen the damage to wetlands. Rather than impacting all of the
wetlands, the revised project avoided 108 of the 253 acres of wetlands, for a loss of 145 acres.
Tri-City accomplished some of the avoidance by moving a school to an off-site location,
relocating the park site to a conservation area, relocating some of the single-family residences,
and moving a road. It also added a conservation buffer area between the project and Stumpy
Lake.
In addition, Tri-City agreed to install state-of-the-art stormwater filtration features such
as wetlands benches, bioretention areas, curb wipes, and grassy swales. These features will
reduce erosion and improve water quality.
Tri-City also agreed to create 290 acres of wetlands offsite, which amounts to two acres
of new wetlands for every acre destroyed in the project. Once the DEQ staff learned that
Tri-City owned the adjoining parcel, it engaged in negotiations to secure 145 acres of wetlands
on the adjoining property, in addition to the other changes to the permit. After Tri-City agreed to
this concession, the DEQ reached the conclusion that these 145 immediately contiguous acres,
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when combined with other concessions including the 290 acres of restored wetlands offsite, met
the requirement of ensuring that there is no net loss of acreage and functions. At the Board’s
final meeting, the DEQ staff acknowledged that the application resulted in a greater destruction
of wetlands than typically occurs, but that the permit also contemplated more protective
measures than typically seen in a proposal.
On November 21, 2003, the Board issued a permit to Tri-City. The Board found that
Tri-City had avoided 108.9 acres of wetlands, or 42% of the total wetlands, by (1) relocating
development to upland areas where practicable; (2) including a conservation area containing 86.3
acres of wetlands; (3) relocating a public park, designating the majority of the wetlands in the
park as “passive recreational” areas; and (4) relocating the proposed school to an off-site
location. Finally, Tri-City minimized impacts to area wetlands by incorporating enhanced
stormwater management into the project.
The permit authorizes Tri-City to convert 144.6 acres of wetlands to uplands through fill
or the excavation of ditches. The Board’s decision was unanimous. The permit is for a
fifteen-year term and expires in 2018. The two-part permit, which spans eighteen pages,
imposes a number of detailed conditions on Tri-City. Among other things, Tri-City must
compensate for the destruction of the wetlands by restoring 290 acres of palustrine, forested
wetlands, as well as conserving 145 acres of forested wetlands on the property directly adjacent
to Stumpy Lake.
III. THE CORPS DECLINES TO ISSUE A PERMIT AND MAKES A NEW WETLANDS DELINEATION.
In addition to a state permit, the project requires a federal permit. On January 21, 2005,
Tri-City applied to the Corps for a permit to impact 144.6 acres of forested wetlands. On March
14, 2005, almost three years after it was asked to review ESG’s delineation, the Corps concluded
that the DEQ approved wetlands delineation was not accurate. The Corps approved a new
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wetlands designation on January 17, 2007. The Corps’ designation added 36.7 acres of wetlands
to the DEQ-approved wetlands delineation. In contrast to the detailed data gleaned by ESG, on
this record, the basis of the Corps’ additional delineation is rather vague. The record shows only
that the Corps noted “ponding water and blackened leaves in designated upland areas” during a
site visit with EPA. On March 3, 2008, following a number of amended proposals and
counter-proposals, the Corps determined that the project was contrary to the public interest and
denied Tri-City a permit.
The Foundation appealed the November 2003 decision of the Board to the Circuit Court
of the City of Richmond. That court entered an order on January 17, 2012, stating that it was
ruling in favor of the Board for reasons that it would state in a memorandum opinion. This
memorandum opinion was “to be issued” later. Nevertheless, the court issued a second order on
September 20, 2012, explaining that it would not be issuing a memorandum opinion. The
Foundation appeals from this second order.
ANALYSIS
I. THRESHOLD ISSUES: TIMELINESS OF THE APPEAL AND
THE STANDING OF THE FOUNDATION TO BRING THIS APPEAL
Two threshold issues require my attention before I delve into the substance of the
assignments of error. First, the Board argues that we must dismiss the appeal as untimely. Second,
the Board contends that the Foundation lacks standing. I address each contention in turn.
A. The Foundation timely appealed from a final order.
The parties presented argument to the circuit court on the petition for appeal in September of
2011. On January 17, 2012, the circuit court issued the following order:
This matter is before the Court on the Petition for Appeal
filed by the Appellants. For reasons stated in a Memorandum
Opinion, to be issued by this Court, this Court finds the Appellants
have not met their burden in establishing that the Virginia State
Water Control Board had insufficient evidential support for its
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findings of fact, or in establishing that the Board violated Va. Code
Ann. § 62.1-44.15:5(D) and other applicable laws and regulations.
The Board decision to issue Virginia Water Protection Permit
#00-1688 was neither arbitrary nor capricious and is hereby
affirmed. The Petition is hereby dismissed.
The order is not styled “final order” and it does not contain a place for counsel to endorse or,
alternatively, a waiver of counsel’s signature pursuant to Rule 1:13.
On July 26, 2012, counsel for the Foundation wrote a letter to the court indicating that he
had not received any communication from the court since the September argument. The letter also
noted that counsel had “been regularly monitoring the Court’s information system [on a monthly
basis] and had seen no entries of any such ruling or order, until recently, when we noted that there
was an entry on the system for an Order dated January 17, 2012.” Counsel noted that, contrary to
the court’s order, no memorandum opinion had been sent to him, nor had one been filed in the
court’s electronic information system. Counsel asked the court to issue the memorandum opinion
referenced in its order.
Following several telephone conferences, the court issued a second order on September 20,
2012. The court explained that it had planned to enter a second order on January 18, 2012, stating
that it would, in fact, not issue a memorandum opinion. The January 18, 2012 order, the court
stated, “had not been entered due to a mistake by the Court.” The order then pursued two
alternative approaches: first, the court assumed that the order of January 17, 2012 was not a final
order until the issuance of a memorandum opinion, and, with that assumption in mind, stated that it
was deciding not to issue a memorandum opinion, thereby making the January 17, 2012 order final.
Alternatively, the court assumed that the order of January 17, 2012 was final, and invoked Code
§ 8.01-428(B) to correct this order to reflect that no memorandum opinion would be issued. The
Foundation then filed its notice of appeal on October 19, 2012.
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The Board argues that the order dated January 17, 2012 constituted a final order and that we
must dismiss the appeal because the Foundation’s notice of appeal was filed more than 30 days after
that order. See Rule 5A:6. The Board points out that a memorandum or letter opinion is not
required from a circuit court and, moreover, the circuit court ruled in favor of the Board and
dismissed the case. For its part, the Foundation notes that the order was not final because, by its
express terms, it contemplated the issuance of a memorandum opinion. I agree with the Foundation.
Ordinarily, appellate courts will defer to a trial court’s interpretation of its own order. See,
e.g., Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148,
152 (2000). Here, however, the trial court did not determine whether the January 17, 2012 order
was a final order. Accordingly, I review this question of law de novo.
Although Virginia jurisprudence contains a significant number of cases addressing what
constitutes a final order, the issue before us is one of first impression. Summarizing its case law, the
Supreme Court of Virginia has held that
An order is final and appealable when it disposes of the whole
subject, gives all the relief that is contemplated, and leaves nothing
to be done in the case except to superintend ministerially the
execution of the order. Conversely, an order is not final if further
action is necessary in order to dispose of the entire subject matter.
Indiana Ins. Guar. Ass’n v. Gross, 268 Va. 220, 220, 598 S.E.2d 322, 322 (2004) (per curiam)
(citations omitted). Although the January 17, 2012 order states that the case is dismissed and it rules
in favor of the Board, the order expressly contemplates that further action is necessary to dispose of
the case, namely, the issuance of a memorandum opinion. A memorandum opinion is a substantive
event in the life of the case that guides the parties’ ability to lodge appropriate objections, to ask for
reconsideration in the limited circumstances where reconsideration is warranted, and, should the
case be appealed, affords the appellate court a controlling explanation of the trial court’s reasoning.
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As a general proposition, a circuit court is not required to issue a memorandum opinion.4
Moreover, an oral statement from the bench that a memorandum opinion is forthcoming does not
affect the finality of a written order. As the Supreme Court has often observed, “[i]t is the firmly
established law of this Commonwealth that a trial court speaks only through its written orders.”
Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). But, where the court does indicate in
a written order that it will issue a memorandum opinion explaining the basis for its decision, such an
order is not final until the court has issued the memorandum opinion, along with a final order or, as
here, issues an order stating that it will not issue a memorandum opinion. A contrary interpretation
would create a formidable procedural trap for attorneys. Counsel should be entitled to rely upon the
written representation of the court about a memorandum opinion without risking dismissal of their
case on appeal.
The Board relies on Johnson v. Woodard, 281 Va. 403, 409, 707 S.E.2d 325, 328 (2011).
There, the Supreme Court held that for a trial court “to reconsider the judgment or to address other
matters still pending in the action before it,” the court must expressly provide that it retains
jurisdiction. Id. The order in Johnson granted a nonsuit and further provided that “for purposes of
Rule 1:1, this is not a final order, in that this Court shall retain jurisdiction of this matter to consider
any application for attorney’s fees and costs and such other relief as may be sought.” Id. The
Supreme Court held that the language of this order was appropriate to retain jurisdiction and to
enable the circuit court to consider whether to award attorney’s fees, costs, and sanctions. The order
in Johnson indisputably constituted a final order – it granted a nonsuit, thus ending the case – but by
explicitly retaining jurisdiction, the court obviated the application of Rule 1:1. A precondition for
4
In some circumstances, the General Assembly expressly has required trial courts to
provide an explanation for a decision. See, e.g., Code § 20-107.1 (requiring “written findings
and conclusions of the court” in ordering spousal support); Code § 8.01-654(B)(5) (requiring
“findings of fact and conclusions of law” in habeas cases).
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the application of Rule 1:1 is the entry of a final order, one that “leaves nothing to be done.”
Johnson did not consider a situation where a trial court has expressly provided in a written order that
it will issue a memorandum opinion explaining the basis for its decision. Johnson, therefore, is
distinguishable because it involved entry of a final judgment that the court suspended in order to
consider collateral matters. The January 17, 2012 order at issue here, in contrast, was not a final
order, because by its express terms it left something substantive to be done. Therefore, the court
was not required to provide that it was retaining jurisdiction.
Carrithers v. Harrah, 60 Va. App. 69, 74, 723 S.E.2d 638, 640 (2012), illustrates this
distinction. There, we held that an order that disposed of the merits of the case but reserved
jurisdiction over attorney’s fees and costs was nevertheless a final order, and that the failure of
the trial court to reserve jurisdiction foreclosed it from reopening the case more than 21 days
after entry of the order.5 Unlike collateral matters of attorney’s fees and costs, a memorandum
opinion gives shape and meaning to the final judgment of the court and constitutes a substantive
rather than a collateral step with regard to the merits of the case.
Our jurisprudence seeks to strike an appropriate balance between, on the one hand, finality
and fairness to the parties and to the trial court with, on the other hand, the need to protect a right to
appellate review. No rule of court or precedent controls this specific situation. Moreover, “it must
be remembered that the [law governing finality of judgments] is designed to simplify and make
certain the matter of appealability. It is not designed as a trap . . . . The [law] should be interpreted
to prevent loss of the right of appeal, not to facilitate loss.” Bankers Trust Co. v. Mallis, 435 U.S.
381, 386 (1977) (citation omitted). I would hold that the appeal is properly before us, and I would
deny the Board’s motion to dismiss.
5
The United States Supreme Court reached the same conclusion in Budnich v. Becton
Dickinson & Co., 486 U.S. 196 (1988) (holding that a decision on the merits is a “final decision”
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B. This Court’s previous rejections of the Board’s arguments that the Foundation lacks standing
dispose of the Board’s renewed challenge to the Foundation’s standing.
In two previous appeals, we rejected the Board’s argument that the Foundation lacks
standing to challenge the issuance of the permit. In the first appeal, we held that Virginia law
recognizes the concept of representational standing and we reversed and remanded the case for
further factual determinations. Chesapeake Bay Foundation, Inc. v. Commonwealth ex. rel. Va.
Water Control Bd., 46 Va. App. 104, 118, 616 S.E.2d 39, 46 (2005). In the second appeal, we
held that the Foundation, in fact, had standing to challenge the permit at issue here. Chesapeake
Bay Foundation, Inc. v. Commonwealth ex. rel. Va. Water Control Bd., 56 Va. App. 546, 556,
695 S.E.2d 549, 555 (2010). For the third time, the Board challenges the Foundation’s standing
to bring this suit. Controlling precedent requires us to hold that the Board has struck out.
To the extent the Board urges a panel of this Court to overturn a previous decision of a
different panel of this Court, we are precluded from doing so under the interpanel accord
doctrine. As the Supreme Court has explained, “a decision of a panel of the Court of Appeals
becomes a predicate for application of the doctrine of stare decisis until overruled by a decision
of the Court of Appeals sitting en banc or by a decision of this Court.” Johnson v.
Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996). To the extent the Board presses
new arguments not advanced in the previous appeals, those arguments are barred by the doctrine
of the “law of the case”:
Where there have been two appeals in the same case, between the
same parties, and the facts are the same, nothing decided on the
first appeal can be reexamined on a second appeal. . . . It differs
from res judicata in that the conclusiveness of the first judgment is
not dependent upon its finality.
as a matter of federal law when the recoverability or amount of attorney’s fees for the litigation
remains to be determined).
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American Filtrona Co. v. Hanford, 16 Va. App. 159, 164, 428 S.E.2d 511, 514 (1993). Our
previous decision that the Foundation has standing to pursue this appeal disposes of the Board’s
contention. Consequently, I would deny the Board’s attempt to revisit the issue.
II. THE RECORD ESTABLISHES THAT THE BOARD MADE THE DETERMINATIONS REQUIRED
BY STATUTE AND MADE THEM IN A MANNER THAT REFLECTS SUBSTANTIVE
CONSIDERATION OF THE APPLICABLE LAWS.
Relying on Browning-Ferris Indus. v. Residents Involved in Saving the Env’t, 254 Va. 278,
492 S.E.2d 431 (1997), the Foundation argues that the Board failed to make the determinations
required by statute, or failed to make them with the required level of specificity. We review this
legal question de novo. Amin v. County of Henrico, 286 Va. 231, 235, 749 S.E.2d 169, 170 (2013).
In Browning-Ferris, the Supreme Court examined whether the Director of the DEQ
followed the requirements set by statute in issuing a permit for a new solid waste management
facility. Id. at 280, 492 S.E.2d at 432. Code § 10.1-1408.1(D) required the Director to make an
explicit determination that the proposed facility poses “no substantial present or potential danger to
human health or the environment.” After the Director issued the permit, an organization of persons
residing near or owning property near the proposed landfill challenged the permit. Among other
things, the challengers argued the Director never made the explicit determination required by Code
§ 10.1-1408.1(D). The Supreme Court found that the statute was unambiguous and that the
Director failed to make the required determination. The Court rejected the argument that the
Director could be deemed to have made an “implicit” determination. Instead, the Court held, the
Director must make an explicit determination that must appear on the face of the agency record. Id.
at 285, 492 S.E.2d at 435. The Court further found that Code § 10.1-1408.1(D) did not require that
the Director’s finding be reduced to writing and, therefore, it could be preserved in the agency
record in a recorded or written format. Finally, the Court held that
The Director’s determination must be made with a degree of
particularity that demonstrates a substantive consideration of the
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statutory factors. A conclusional recitation of the statutory language
or a statement that the Director complied with the statute is
insufficient to satisfy this statutory mandate. The analysis which the
Director employs in considering the statutory factors is a matter
submitted to his discretion and expertise under the statutory scheme.
Id.
The Foundation contends that the Board failed to make an “explicit and substantiated”
determination as to (1) the proposed project’s compliance with the Clean Water Act; and (2) the
effects of the cumulative impact to wetlands from the proposed project and other existing or
proposed projects. I will address each contention in turn.
A. Clean Water Act compliance
Code § 62.1-44.15:20(B), formerly Code § 62.1-44.15:5(B), provides that the Board shall
issue a permit if it has “determined that the proposed activity is consistent with the provisions of
the Clean Water Act and the State Water Control Law and will protect instream beneficial uses.”
The “Fact Sheet” issued by the Board expressly provides that the “proposed activity is consistent
with the provisions of the Clean Water Act . . . .” The Foundation contends that this notation is
not sufficient under Browning-Ferris. It argues that “[t]here is no mention in either the Permit or
its Fact Sheet of how the Permit purportedly complies with the Clean Water Act, what the Board
considered to make that conclusory assertion, or how it arrived at that conclusion.” The Board
counters that the record shows that it considered the requirements of the Clean Water Act. I
agree with the Board.
First, I note that in Browning-Ferris, the Director of the DEQ never referenced the
applicable statute in his decision to issue the permit. Therefore, there is no claim in this case, as
there was in Browning-Ferris, that the Board made an implicit determination of compliance with
the Clean Water Act. Here, the Board’s determination is quite express.
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Second, as the Board points out, the requirements of the Clean Water Act with regard to
avoidance, minimization, and mitigation are substantively the same as the requirements of the
state water control law. See 40 C.F.R. § 230.10 (setting forth the practicable alternative
guidelines for a § 404 permit obtained under the Clean Water Act) and 9 Va. Admin. Code § 25-
210-115 (setting forth Virginia’s alternatives analysis requirements). Given these overlapping
requirements, I would reject the Foundation’s formalistic argument that the Board must indicate
which statutory scheme it was considering when determining whether an application for a permit
satisfies the avoidance, minimization, and mitigation requirements of state and federal law.
Third, and most crucially, the administrative record here is replete with the Board’s
substantive consideration of state and federal legal requirements. First, the Board received
extensive public comments at multiple hearings. The Board also received a large volume of
written comments by interested parties and the DEQ. The record reflects that the Board
considered these comments. Finally, the Board’s substantive consideration of legal requirements
is also made manifest by the repeated significant revisions to Tri-City’s application and the
detailed conditions imposed in the written permit itself. Browning-Ferris does not require that
the Board’s decision be reduced to writing. It requires that the record reflect the Board’s
“substantive consideration” of statutory requirements. Browning-Ferris, 254 Va. at 285, 492
S.E.2d at 435. This record abundantly reflects such consideration by the Board.
B. The Board’s cumulative-impacts analysis
The Code specifies that “[a] permit shall be issued only if the Board finds that the effect
of the impact, together with other existing or proposed impacts to wetlands, will not cause or
contribute to a significant impairment of state waters or fish and wildlife resources.” Code
§ 62.1-44.15:21(A) (formerly Code § 62.1-44.15:5(D)). The Foundation faults the DEQ for looking
only at permit applications that are “in-house,” i.e. those that have been submitted to the Board for
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review. The Foundation argues that the law “provides no exception for proposed impacts that are
not ‘in house’ in the form of a pending, formal permit application.” According to the Foundation,
“[b]oth [the] DEQ and the Board had before them more than sufficient information about proposed
future projects that required a thorough and proper cumulative-impacts analysis.” I disagree with
the Foundation.
I begin with the statutory language. Code § 62.1-44.15:21(A) requires the Board to consider
“existing or proposed impacts” in addition to the impact of the proposal pending before the Board.
Obviously, future projects are not “existing” projects. The question then is whether the record
establishes any “proposed” projects. I understand the plain language meaning of the word
“proposed” to mean something more than a desire for future development. The word “proposed,” in
this context, means “to offer for consideration, discussion, acceptance, or adoption.” Webster’s
Third New International Dictionary 1819 (1981). The record reflects that Tri-City anticipates future
development. What type of development that might be, however, is not clear.
For example, the Foundation points to a map that shows a road that connects the parcel
currently under consideration to the adjoining parcel. The Foundation argued this is not a “road to
nowhere,” that the existence of the road unmistakably indicates future development. The
Foundation also produced a map that suggests future development, and argued that a nearby
“borrow pit” could have an impact.6 The map in question does not indicate any specific type of
development. The record certainly supports the Foundation’s assertion that Tri-City plans to
develop the adjoining parcel in the future. The intent to develop an adjoining parcel in the future,
however, does not constitute a “proposed” development within the intendment of the statute. And
6
Tri-City argues in response that the road in question, the Plantation Woods Parkway, is
a longstanding part of the master road plan for Chesapeake. Tri-City also disputed that it was
building a “borrow pit” nearby for use in this project. It argued that the borrow pit is not tied to
this permit or this project. Instead, Tri-City stated that it contemplates using the pit elsewhere,
“in major planned road projects in the Tidewater area in the future.”
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this points to a major difficulty with the Foundation’s argument. Absent a concrete proposal
showing the type of development that is contemplated, there is no way for the DEQ or the Board to
anticipate the impact such future development might have. Indeed, the project under review
illustrates the flexibility of the real estate market. Although the parcels comprising the subject
property were purchased beginning in 1985, and were purchased from the outset with a view to
developing a master-planned community, the property was not developed until much later due to
market demand, the condition of the economy, interest rates, costs of construction, and other
variables. Economic conditions fluctuate, consumer tastes evolve, and regulatory requirements
change. All of this means that an intended project may never come to fruition or may come to
fruition in a condition significantly altered from the original conception. For the DEQ and the
Board to be able to identify the impact of such future development, there must be something
concrete and specific to evaluate. An intention to develop real estate in the future is not a
“proposed” impact.7
III. THE CORPS’ WETLANDS DELINEATION IS NOT CONTROLLING
BECAUSE IT WAS MADE AFTER THE BOARD ISSUED THE PERMIT.
Code § 62.1-44.15:21(C) provides that “[a]ny delineation accepted by the U.S. Army
Corps of Engineers as sufficient for its exercise of jurisdiction pursuant to § 404 of the Clean
Water Act shall be determinative of the geographic area of that delineated wetland.” The
Foundation points to this sentence as being dispositive. It reasons that the Corps’ delineation is
“determinative,” and because it varies from the delineation used to evaluate the permit, the Board
must now vacate the permit and reexamine the entire application. This contention presents a
7
I agree with the Foundation insofar as it argues that the statute does not require the
“proposed impact” to emanate from a proposal that is filed “in house” with the DEQ. A concrete
proposal for development that is pending before the Corps or a local government, for example,
can be evaluated for its impact, whether or not the proposal has been filed “in house” with the
DEQ or the Board.
- 17 -
question of statutory interpretation, which we review de novo. Va. Dep’t of Health v. NRV Real
Estate L.L.C., 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009).
Settled legal principles guide my construction of this statute. “In construing statutes, courts
are charged with ascertaining and giving effect to the intent of the legislature.” Crown Cent.
Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997). “A cardinal rule of statutory
construction is that a statute be construed from its four corners and not by singling out a particular
word or phrase.” Commonwealth Nat. Res., Inc. v. Commonwealth, 219 Va. 529, 536, 248 S.E.2d
791, 795 (1978). In addition, “[t]he doctrine of pari materia teaches that statutes are not to be
considered as isolated fragments of law, but as a whole, or as parts of a great, connected
homogenous system, or a simple and complete statutory arrangement.” Commonwealth v.
Wallace, 29 Va. App. 228, 234, 511 S.E.2d 423, 425 (1999) (quoting Moreno v. Moreno, 24
Va. App. 190, 197, 480 S.E.2d 792, 796 (1997)) (internal quotations omitted).
Virginia law contains a number of other provisions that are germane to the resolution of
this issue. First, the Code imposes a number of deadlines for the Board to act. The Board must,
“[w]ithin 120 days of receipt of a complete application,” either “issue the permit, issue the
permit with conditions, deny the permit, or decide to conduct a public meeting or hearing.” Code
§ 62.1-44.15:21(E). If the Board decides to hold a public meeting or hearing, it must do so “within
60 days of the decision to conduct such a proceeding.” Id. Following the hearing, the Board must
make “a final decision as to the permit . . . within 90 days of completion of the public meeting or
hearing.” Id. The General Assembly thus manifested its intent that permits should be acted upon
with some dispatch. The Foundation’s position – that a new wetlands delineation by the Corps at
any time must control, even if issued years after action by the Board – runs counter to the legislative
command of timely action.
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This case illustrates the stark consequence of such a position. According to the Foundation,
the parties must start over from square one, after numerous hearings by the Board and more than a
decade of litigation. I find it hard to believe that the General Assembly intended such a colossal
waste of resources by the parties, by the state administrative agencies, and by the judiciary.
The Code further provides – in the same section that contains the sentence the Foundation
relies upon, no less – that “[a]ny such approval of a delineation shall remain effective for a period of
five years; however, if the Board issues a permit pursuant to this article for an activity in the
delineated wetland within the five-year period, the approval shall remain effective for the term of
the permit.” Code § 62.1-44.15:21(C) (emphasis added).8 The Foundation’s interpretation would
mean that the Board’s approval would not, in fact, remain effective for the term of the permit.
Instead, the approval of a delineation would remain effective until the Corps makes a different
delineation, even if that occurs long after the Board has issued a permit.
Finally, wetland boundaries are not static. They can change based on natural activity. To
impose additional delay on the issuance of a permit based on this natural cycle would further erode
the time constraints the General Assembly has imposed on the Board and incentivize delaying
tactics at the state level in order to prompt a new designation by the Corps – one that would then,
according to the Foundation, require the Board to start all over again. I do not think the General
Assembly intended such a cumbersome and impractical statutory scheme.
Insofar as the Foundation argues that the Board conceded this issue, I disagree. The Board
recognized, as a practical matter, if the Corps imposes more stringent conditions on the issuance of a
permit, the most restrictive conditions control. This practical recognition of the realities of a dual
8
Although the Board may modify a permit, as Judge Petty notes, this specific language
controls with regard to the delineation of wetlands.
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permitting scheme does not constitute a legal concession by the Board that a new wetlands
delineation by the Corps requires the Board to vacate a permit it has issued.9
When the General Assembly created a state permitting regime that is similar but not
identical to the federal permitting regime, it created the possibility that state and federal agencies
would ultimately differ on permitting requirements. That is an inescapable fact of such a permitting
scheme. Moreover, Tri-City must still satisfy federal permitting requirements and must
accommodate the wetlands delineation made by the Corps.
Interpreting as a whole the words of the statute, I would hold that the Corps’ wetlands
delineation is controlling over a contrary delineation until a permit has issued. Once it has issued,
the permit remains valid for its stated term, regardless of a subsequent revised delineation by the
Corps.
IV. THE BOARD’S ACTIONS SATISFY THE STRICTURES OF THE STATE WATER CONTROL LAW.
Judicial review of agency decisions is limited. See Code § 2.2-4027. Our purview here is to
ensure that the agency (1) acted in accordance with the law, (2) did not make any significant
procedural error; and (3) had sufficient evidential support for its findings of fact.
Commonwealth ex rel. Va. State Water Control Bd. v. Blue Ridge Envt’l Def. League, 56
Va. App. 469, 480, 694 S.E.2d 290, 296 (2010).
With regard to factual issues, the task before us is to determine “‘whether substantial
evidence exists in the agency record to support the agency’s decision. The reviewing 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.’” John Doe v. Virginia Bd. of Dentistry, 52
9
This conclusion disposes of the Foundation’s argument that the circuit court erred in
refusing to remand the case to the Board based on the Corps’ wetlands delineation. Whether the
Corps grants or denies a permit pursuant to its own, separate permitting authority is irrelevant to
the issue before the circuit court, namely, the legal correctness of the Board’s decision to issue a
permit.
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Va. App. 166, 175, 662 S.E.2d 99, 103 (2008) (quoting Johnston-Willis, Ltd. v. Kenley, 6
Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)). This standard is designed “to give great stability
and finality to the fact-findings of an administrative agency.” Virginia Real Estate Commission
v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983). As a general proposition, we review the
agency’s legal conclusions de novo. Code § 2.2-4027.
The Foundation argues that
The Board and [the] DEQ failed to apply the required hierarchical
avoidance/minimization/compensation analysis, failed to require
Tri-City to explore practicable alternatives, failed to require Tri-City
to show that its proposed project was the least damaging alternative,
and instead bypassed directly to compensation.
A. Statutory and regulatory obligations
The General Assembly of Virginia enacted the State Water Control Law with a view to
(1) protect existing high quality state waters and restore all other
state waters to such condition of quality that any such waters will
permit all reasonable public uses and will support the propagation
and growth of all aquatic life, including game fish, which might
reasonably be expected to inhabit them; (2) safeguard the clean
waters of the Commonwealth from pollution; (3) prevent any
increase in pollution; (4) reduce existing pollution; (5) promote
and encourage the reclamation and reuse of wastewater in a
manner protective of the environment and public health; and
(6) promote water resource conservation, management and
distribution, and encourage water consumption reduction in order
to provide for the health, safety, and welfare of the present and
future citizens of the Commonwealth.
Code § 62.1-44.2.
The State Water Control Law defines “wetlands” as
[T]hose areas that are inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs and similar
areas.
Code § 62.1-44.3.
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The Water Control Law requires anyone seeking to fill or drain wetlands to obtain a
Virginia Water Protection permit. Code § 62.1-44.15:20(A). Prior to issuing a permit, the State
Water Control Board must find that “the proposed activity is consistent with the provisions of the
Clean Water Act and the State Water Control Law and will protect instream beneficial uses.” Code
§ 62.1-44.15:20(B). In addition, a permit can “be issued only if the Board finds that the effect of
the impact, together with other existing or proposed impacts to wetlands, will not cause or
contribute to a significant impairment of state waters or fish and wildlife resources.” Code
§ 62.1-44.15:21(A).
A permit also must “address avoidance and minimization of wetland impacts to the
maximum extent practicable.” Id. Furthermore, “permits shall contain requirements for
compensating impacts on wetlands. Such compensation requirements shall be sufficient to
achieve no net loss of existing wetland acreage and functions.” Code § 62.1-44.15:21(B).
Regulations additionally provide that
For all proposed projects, the applicant shall demonstrate to the
satisfaction of the board that avoidance and minimization
opportunities have been identified and applied to the proposed
activity, that practicable alternatives, including design alternatives,
have been evaluated for the proposed activity, and that the
proposed activity, in terms of impacts to water quality and fish and
wildlife resources, is the least environmentally damaging
practicable alternative.
9 Va. Admin. Code § 25-210-115(C). The regulation further specifies that
1. Avoidance and minimization includes, but is not limited to,
steps taken in accordance with the Guideline for Specification of
Disposal Sites for Dredged or Fill Material, 40 CFR Part 230
(Federal Register, December 24, 1980) to first avoid and then
minimize adverse impacts to surface waters to the maximum extent
practicable. Measures, such as reducing the size, scope,
configuration, or density of the proposed project, that would avoid
or result in less adverse impact to surface waters shall be
considered to the maximum extent practicable.
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Id. A guidance memorandum issued by the DEQ explains that for the type of project at issue
here,
[T]he applicant must clearly demonstrate that there are no other
practicable alternatives to the proposed impacts. VWPP project
managers should explore other practicable factors (i.e. design
changes, siting changes, project reconfiguration, different
construction practices, etc.) that first avoid the proposed impact,
then minimize those unavoidable impacts.
The Foundation also cites federal guidelines and regulations to the same effect.
Neither the Code nor the regulations compel avoidance or minimization at all costs. Such
minimization and avoidance must occur where “practicable.” This term is defined as “available
and capable of being done after taking into consideration cost, existing technology and logistics
in light of overall project purposes.” 9 Va. Admin. Code § 25-210-10. A guidance
memorandum issued by the DEQ in 2004 provides that “to be practicable, an alternative must be
both available to the permit applicant and capable of fulfilling the overall project purpose.”
B. The record establishes that the Board considered and rejected alternatives.
I now turn to the Foundation’s claim that the “record is wholly devoid of the required
alternatives analysis.” First, with regard to available alternative sites, the Board found persuasive
Tri-City’s contention that
No other sites exist in the area that could satisfy the project purpose
of providing nearby residential development and related services to
the rapidly expanding commerce and employment center located
around the Interstate 64 and Greenbrier Parkway interchange, and
have less impact to wetlands.
I am unable to find any indication in the record of a viable alternative site.
Tri-City did not produce – and the Board did not require it to produce – a folder full of
alternative plans for the Board to choose from. What transpired instead was an ongoing negotiation
during the course of which Tri-City made extensive revisions to its original plan – revisions made at
the prodding of the Board and the DEQ. Tri-City moved a road, relocated a school off-site,
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expanded a buffer, moved some of the single-family homes, and installed elaborate stormwater
protection measures to minimize the impact on wetlands. The original project was significantly
reworked to minimize wetlands impacts. Therefore, the Board plainly did not ignore avoidance and
minimization measures and did, in fact, require alternatives from Tri-City.
The record also reflects the fact that the Foundation offered several alternative designs of the
parcel at issue and that the Board considered these alternatives. The Board rejected these
alternatives. One obstacle to the redesigns proposed by the Foundation is that these redesigns
would require additional rezoning by the City of Chesapeake, which did not favor the redesign. In
addition, the Board heard testimony that the Foundation’s proposed alternative of clustering the lots
on small parcels would have a substantial adverse impact on the economics of the project because
the sales price of the lots would be substantially reduced. Tri-City submitted an analysis indicating
that the Foundation’s alternative of “[r]ow town-homes” constitutes an “outdated development
concept.” One of the alternatives would result, according to the City of Chesapeake, in a
$117,760,000 reduction of the overall property value of the project. Another alternative scenario
proposed by the Foundation involved removing the project’s proposed commercial components.
Tri-City contended that this alternative was not practicable economically. The City of Chesapeake
also noted that this alternative would not only dramatically reduce the value of the project but also
defeat the purpose of a mixed-use development, which is “to bring together a variety of community
activities, amenities and services in close proximity, thereby reducing the need for extensive
automobile travel and promoting increased personal interaction.”
By law, the Board also had to consider avoidance and minimization measures that are
“practicable,” i.e. “available and capable of being done after taking into consideration cost,
existing technology and logistics in light of overall project purposes.” 9 Va. Admin. Code
§ 25-210-10. The overall project purpose was to build a master-planned, mixed-use development
- 24 -
that would supply housing and services to the Greenbrier area of Chesapeake. Tri-City offered
evidence to show that it, or its related predecessors, had spent in excess of $15 million to acquire the
land that was combined to form the parcel at issue. The record establishes that the Board
considered a variety of alternative measures, including ones that would reduce “the size, scope,
configuration, or density of the proposed project.” 9 Va. Admin. Code § 25-210-115(C)(1).
C. The record supports the Board’s alternatives analysis.
The Foundation further argues that the Board’s practicability analysis was flawed because it
accepted Tri-City’s economic analyses “without scrutiny.” The record refutes this characterization.
After Tri-City provided the Board with a variety of evidence regarding its costs, as well as a
marketing review of the site, members of the Board questioned both the Foundation’s counsel and
counsel for Tri-City about the numbers provided. The Board also asked questions concerning
written comments provided by the Foundation. The record thus reflects that the Board did
scrutinize the economic analyses.
The Foundation challenges Tri-City’s estimates of its cost, noting that much of the land
initially was purchased by other corporate entities, evidenced by the fact that Tri-City was not even
formed as a corporate entity until 1998. The Board is required to consider the “cost” in determining
what alternatives are “practicable.” 9 Va. Admin. Code § 25-210-10. The regulation does not
confine the “cost” to the entity applying for the permit. Importantly, the record establishes that
all of the entities were related10 and there is no dispute that the purchases of land were all made
with a view to creating a master-planned community to serve the Greenbrier area of Chesapeake.
I discern no reason why the Board should exclude predecessor, but related, entities from the
10
Tri-City represented that these predecessor entities (E.S.G. Enterprises, Inc., Aqua
Sports, Inc., and TransAmerica Services, Inc.,) were owned by principals of Tri-City and that the
transfers of property from these other entities to Tri-City was made for corporate and estate
planning reasons.
- 25 -
“cost” analysis where those related entities shared the same investment-backed expectations
from the beginning. The point of the practicability analysis is to take into account the applicant’s
investment-backed expectations, not to straightjacket developers into one particular corporate
structure.11
D. I would reject the Foundation’s remaining arguments.
The Foundation also highlights language in a memorandum dated February 25, 2003, in
which the DEQ staff stated that it “believe[d] that the mitigation proposed in the applicant’s
conceptual mitigation plan has potential for providing acceptable compensation that will result in
no net loss of wetland function.” It is not enough, the Foundation argues, to have a “belief” that
a mitigation plan has the “potential” to provide the necessary compensation. At the time this
memorandum was prepared, however, the DEQ staff were still working with the applicant to
secure additional compensation sites. The memorandum concludes that additional details would
be presented at the Board’s upcoming meeting. At the Board’s final meeting in October of 2003,
the DEQ staff stated without ambiguity that the 145 acres on the adjacent property that are
preserved in perpetuity, as well as the carefully selected 290 acres of restored wetlands, would
not only ensure no net loss of wetlands but would actually result in a net gain of wetlands.
Finally, the Foundation stresses the Corps’ rejection of Tri-City’s permit application, as well
as the arguments it made in opposition to the permit. Certainly, the Corps laid out in carefully
considered detail its reasoning for rejecting a permit. However, the Corps’ decision with regard to a
federal permit is not controlling over the state’s separate permitting authority. Additionally, as the
United States Supreme Court has persuasively observed, “the possibility of drawing two
11
This would hold true in the inverse scenario, that is, a related/successor corporation
who purchases the property at an artificially inflated price in order to increase its costs and
thereby truncate the practicability analysis. Such an artificial inflation of costs would not reflect
the true costs of the applicant. By the same token, an artificially low purchase price by the
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inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). Our role as a reviewing court is neither to evaluate the wisdom of the Board’s decision, nor
to substitute our judgment for that of the Board. My review of this record, under the deferential
standard we must apply, compels me to conclude that substantial evidence exists in the record to
support the Board’s decision.
CONCLUSION
The decision of the circuit court is affirmed.
Affirmed.
applicant from a related corporation does not reflect the broader investment-backed expectations
of the related entities that purchased the land.
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Petty, J., concurring in part and dissenting in part.
I join in Section I of Judge McCullough’s opinion and agree that we have jurisdiction to
hear this appeal and that the Foundation has standing to pursue it. However, because I believe
that this matter must be remanded to the Board for further consideration in light of the Army
Corps of Engineers (the Corps) increased delineation of the acreage of wetlands affected, I
dissent from the remainder of his opinion.
The decision of the State Water Control Board (SWCB) in this case has spawned over a
decade of litigation, three appearances before this Court, and an appendix of over two thousand
pages. While the procedural history of this saga is sometimes obfuscated by bureaucratic jargon,
it appears that the genesis of the controversy goes back to 1989 when the City Council for the
City of Chesapeake rezoned the property for commercial and residential development. In 1994,
an initial wetlands assessment determined that much of the property consisted of wetlands. Four
years later, Environmental Specialties Group, Inc., a different wetland consultant representing
Tri-City, conducted an assessment and determined that only a small portion of the property
consisted of wetlands. The Corps rejected this assessment and, in 1999, Environmental
Specialties re-examined the property and concluded that most of the area, including the property
that is part of this permit, consisted of wetlands. App. at 177.
In September 2000, Tri-City applied for a permit from the SWCB to allow it to proceed
with the development of the property. In December 2001, a review request letter and copy of the
permit application were mailed to the Corps by the SWCB. Because the Corps was asserting its
jurisdiction under Section 404 of the Clean Water Act, it began processing the application for a
concurrent federal permit. According to the SWCB, on August 9, 2002, the federal permit
processes was terminated due to “insufficient response from the applicant.” App. at 476.
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In November 2003, the SWCB issued the permit involved in this appeal to Tri-City to
develop 144.6 acres of forested wetlands. On January 21, 2005, Tri-City re-submitted an
application involving the same development proposal approved by the SWCB to the Corps. This
proposal involved the development of the 144.6 acres of wetlands. In March 2005, the Corps
determined that the wetlands delineation was inaccurate and, in January 2007, a wetlands
delineation adding an additional 36.7 acres was issued by the Corps. The Corps concluded that a
total of 181.3 acres of wetlands would be affected by the project, a 25% increase over the
delineation contained in the state permit. App. at 177-78.12
Code § 62.1-44.15:21(C) (originally enacted as Code § 62.1-44.15:5(D)) provides, in
pertinent part, that “[a]ny delineation accepted by the U.S. Army Corps of Engineers as
sufficient for its exercise of jurisdiction pursuant to § 404 of the Clean Water Act shall be
determinative of the geographic area of that delineated wetland.” Further, prior to issuing a
permit, the SWCB must determine that “the proposed activity is consistent with the provisions of
the Clean Water Act . . . .” Code § 62.1-44.15:20(B) (originally enacted as Code
§ 62.1-44.15:5(B)). The plain language of these statutes provides a clear and unambiguous
statement that the General Assembly intended to follow the requirements of the federal Clean
Water Act when issuing permits for the development of wetlands. Thus, as both parties concede,
the scope of the state permit cannot exceed the scope of a required federal permit.
Judge McCullough’s opinion recognizes this, but concludes that Code § 62.1-44.15:21(C)
does not apply once the permit is issued. I disagree with this conclusion for two reasons. First, it
would allow a permit applicant to deliberately circumvent Code § 62.1-44.15:21(C) by timing
his applications. That is exactly what occurred here. The initial federal permit process was
12
In March 2008, the Corps denied the application for a federal permit. This action was
upheld on appeal and, from this appendix, appears to be a final decision by the Corps. It is
- 29 -
initiated when the SWCB forwarded the state permit application to the Corps. Apparently
recognizing that the Corps had already determined the acreage of affected wetlands was greater
than delineated in the state application, Tri-City effectively terminated the federal review by
failing to respond to inquiries by the Corps. Only after the SWCB had issued the state permit did
Tri-City apply for a federal permit in its own right.
The second disagreement I have with Judge McCullough’s analysis of this issue is his
apparent conclusion that once a permit is issued, the delineation of wetlands, and thus the scope
of the project, is cast in stone. I believe that this view ignores the SWCB’s authority to modify a
permit in this situation. SWCB Regulation 9 VAC 25-210-180 provides express authority for the
SWCB to modify a permit. Grounds for modifying a permit include:
1. When additions or alterations have been made to the affected
facility or activity that require the application of VWP permit
conditions that differ from those of the existing VWP permit or are
absent from it;
2. When information becomes available about the operation of
activity covered by the VWP permit that was not available at VWP
permit issuance and would have justified the application of
different VWP permit conditions at the time of VWP permit
issuance;
* * * * * * *
5. When changes occur that are subject to “reopener clauses” in
the VWP permit; . . . .
9 VAC 25-210-180.
Moreover, Tri-City’s permit requires Tri-City to
notify the DEQ of any additional impacts to surface waters,
including wetlands, or any change to the type of wetlands impacts,
associated with this project. Any additional impacts to surface
waters, including wetlands, shall be subject to individual permit
ironic, therefore, that all the time and effort expended by the parties in this appeal may be for
naught; if the Corps is correct in its assertion of jurisdiction, this project is dead in the water.
- 30 -
review or modification of this permit, and compensatory mitigation
and/or site restoration may be required.
App. at 453 (emphases added).
Finally, the permit contains a “reopening clause”:
Cause for reopening VWP permits includes, but is not limited to
when the circumstances on which the previous VWP permit was
based have materially and substantially changed, or special studies
conducted by the board or the permittee show material and
substantial change, since the time the VWP permit was issued and
thereby constitute cause for VWP permit modification or
revocation and reissuance.
App. at 467.
The Corps wetlands delineation was issued while this case was pending on appeal before
this Court. When we remanded the case back to the circuit court for further consideration, the
Foundation filed a motion to remand it to the SWCB for reconsideration in light of the
conflicting Corps wetlands delineation. The circuit court denied the motion. Because I believe
that Code § 62.1-44.15:21(C) requires the SWCB to defer to the Corps’ wetland delineation, and
because I believe that the SWCB’s regulations and the permit it issued allow for the reopening of
that permit, I would reverse the circuit court and remand with directions to remand this matter
back to the SWCB for further consideration.13
13
In light of my conclusion that this matter should be remanded to the SWCB for
reconsideration, I would not reach the additional assignments of error presented by the
Foundation.
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Chafin, J., dissenting.
I respectfully dissent from the majority’s holding that this Court acquired active
jurisdiction to consider the merits of appellants’ case. I would hold that the circuit court’s
January 17, 2012 order was a final order rendering judgment for the purposes of Rule 1:1.
Therefore, appellants’ October 19, 2012 notice of appeal was not timely filed and we are without
jurisdiction to consider the appeal. As such, I believe the appeal should be dismissed.
The circuit court’s final order stated that
the [a]ppellants have not met their burden in establishing that the
Virginia State Water Control Board had insufficient evidential
support for its findings of fact, or in establishing that the Board
violated Va. Code Ann. § 62.1-44.15:5(D) and other applicable
law and regulations. The Board decision to issue the Virginia
Water Protection Permit #00-1688 was neither arbitrary nor
capricious and is hereby affirmed. The Petition is hereby
dismissed.
“It is the firmly established law of this Commonwealth that a trial court speaks only
through its written orders.” Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996). Our
Supreme Court has defined a “final order or decree” as “one that disposes of the entire matter
before the court, giving all the relief contemplated and leaving nothing to be done by the court
except the ministerial execution of the court’s order or decree.” McLane v. Vereen, 278 Va. 65,
70, 677 S.E.2d 294, 297 (2009). See also Comcast of Chesterfield County, Inc. v. Bd. of
Supervisors, 277 Va. 293, 301, 672 S.E.2d 870, 873 (2009); Upper Occoquan Sewage Auth. v.
Blake Constr. Co., 275 Va. 41, 60, 655 S.E.2d 10, 21 (2008); James v. James, 263 Va. 474, 481,
562 S.E.2d 133, 137 (2002); Daniels v. Truck & Equipment Corp., 205 Va. 579, 585, 139 S.E.2d
31, 35 (1964).
Even where an order granting final judgment expressly indicates that the trial court
intends further action, “such language does not negate the fact that such an order is in fact a final
judgment.” Carrithers v. Harrah, 60 Va. App. 69, 74, 723 S.E.2d 638, 640 (2012). “The
- 32 -
Supreme Court has held that if a trial court wishes such an order not to be a final order, it must
‘includ[e] specific language [in the order rendering judgment] stating that the court is retaining
jurisdiction to address matters still pending before the court.’” Id. at 74-75, 723 S.E.2d at 640
(alteration in original) (quoting Johnson v. Woodard, 281 Va. 403, 409-10, 707 S.E.2d 325, 328
(2011)).
Rule 1:1 states in pertinent part: “All final judgments, orders, and decrees, irrespective of
terms of court, shall remain under the control of the trial court and subject to be modified,
vacated, or suspended for twenty-one days after the date of entry, and no longer.” “‘[W]hen a
trial court enters an order, or decree, in which a judgment is rendered for a party, unless that
order expressly provides that the court retains jurisdiction to reconsider the judgment or to
address other matters still pending in the action before it, the order renders a final judgment and
the twenty-one day time period prescribed in Rule 1:1 begins to run.’” Johnson, 281 Va. at 409,
707 S.E.2d at 328 (emphases added) (quoting Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va.
555, 561, 561 S.E.2d 734, 737 (2002)).
“[T]he running of the twenty-one day time period prescribed by Rule 1:1 may be
interrupted only by the entry, within the twenty-one day time period, of an order modifying,
vacating, or suspending the final judgment order.” Burrell v. Commonwealth, 283 Va. 474, 478,
722 S.E.2d 272, 274 (2012) (quoting Super Fresh Food Mkts. of Va., 263 Va. at 560, 561 S.E.2d
at 737). No such order was entered in this case.
Even though the circuit court contemplated a memorandum opinion to follow the January
17, 2012 order, the failure to issue one did not affect the finality of the dismissal order. The final
order gave all the relief contemplated and left nothing to be done by the court. In fact, during the
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July 2012 conference call between the circuit court and the parties, the circuit court
acknowledged that a memorandum opinion was neither necessary nor required in this case.14
This Court has stated, in no uncertain terms, that “Code § 8.01-428(B) does not provide
the trial court with authority to vacate and reenter a final decree for the sole purpose of extending
the filing deadline upon realization that the parties were not timely notified of the decree’s entry.
The authority and procedure to extend the filing deadline, where lack of notice is the issue, is
provided only under subsection (C).”15 Zhou v. Zhou, 38 Va. App. 126, 136, 562 S.E.2d 336,
340 (2002).
14
On September 10, 2012, counsel for appellants requested that the court “vacate the
incorrect January 17 Order and enter a new order – with a new, current date – setting out that
there will be no accompanying memorandum opinion” pursuant to Code § 8.01-428(B). On
September 20, 2012, the circuit court issued an order “correcting” the January 17, 2012 order to
reflect that a memorandum opinion stating the reasons for the underlying dismissal would not be
filed, and reaffirming that the January 17, 2012 order was in fact a final order. “[C]ourts have
the authority to interpret their own orders. Furthermore, when construing a lower court’s order, a
reviewing court should give deference to the interpretation adopted by the lower court.” Rusty’s
Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999) (en banc)
(citations omitted). However, the interpretation needs to be reasonable and shall be reviewed
with an abuse of discretion standard. Roe v. Commonwealth, 271 Va. 453, 458, 628 S.E.2d 526,
528 (2006) (citing Smoot v. Commonwealth, 37 Va. App. 495, 500, 559 S.E.2d 409, 412
(2002)).
15
Six months after the court entered its final order, counsel for appellants notified
counsel for appellees and the court that it allegedly never received a copy of the underlying order
despite its purported persistent monitoring of the circuit court’s electronic case information
system. These allegations, even if true, are expressly addressed by Code § 8.01-428(C) and are
furthermore insufficient to alter the fact that the time to appeal had expired.
According to Code § 8.01-428(C):
If counsel, or a party not represented by counsel, who is not in
default in a circuit court is not notified by any means of the entry
of a final order and the circuit court is satisfied that such lack of
notice (i) did not result from a failure to exercise due diligence on
the part of that party and (ii) denied that party an opportunity to
pursue post-trial relief in the circuit court or to file an appeal
therefrom, the circuit court may, within 60 days of the entry of
such order, modify, vacate, or suspend the order or grant the party
leave to appeal. Where the circuit court grants the party leave to
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Therefore, to the extent the September 20, 2012 order purports to extend the time to
appeal, I would hold that it is a nullity. See Burrell, 283 Va. at 480, 722 S.E.2d at 275.
Judgment was final upon entry of the January 17, 2012 order, thus triggering appellants’
opportunity to note an appeal to this Court. Because appellants failed to file a notice of appeal
within thirty days, I would hold that this Court lacks jurisdiction to hear the appeal. See Rule
5A:6.
appeal, the computation of time for noting and perfecting an appeal
shall run from the entry of such order, and such order shall have no
other effect.
Neither appellants nor the court took any action within the additional time provided under this
section’s limited exception to Rule 1:1.
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