Riverview Farm Associates v. CW, DEQ, etc. ( 1999 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Lemons and Senior Judge Cole
    Argued at Richmond, Virginia
    RIVERVIEW FARM ASSOCIATES
    VIRGINIA GENERAL PARTNERSHIP,
    JEARALD D. CABLE AND ROBERT L. WALDROP
    MEMORANDUM OPINION * BY
    v.   Record No. 2337-98-2                 JUDGE MARVIN F. COLE
    DECEMBER 7, 1999
    COMMONWEALTH OF VIRGINIA, DEPARTMENT OF
    ENVIRONMENTAL QUALITY, ex rel. STATE
    WATER CONTROL BOARD, DENNIS TREACY, DIRECTOR
    AND EXECUTIVE SECRETARY AND WEANACK LAND
    LIMITED PARTNERSHIP
    FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
    Thomas B. Hoover, Judge
    David S. Bailey for appellants.
    Carl Josephson, Assistant Attorney General
    (Mark L. Earley, Attorney General; Roger L.
    Chaffe, Senior Assistant Attorney General;
    E. E. Mathews, III; F. Lewis Biggs; McGuire,
    Woods, Battle & Boothe LLP, on brief), for
    appellees.
    Amicus Curiae: Mattaponi Indian Tribe
    (Debra L. Willen; Hope M. Babcock;
    Jeffrey C. Nelson; Sandra Franco, Law
    Student Intern; Stephanie Tai, Law Student
    Intern; Guerrieri, Edmond & Clayman;
    Institute for Public Representation,
    Georgetown University Law Center, on
    briefs), for appellants.
    Riverview Farm Associates Virginia General Partnership,
    Jearald D. Cable, and Robert L. Waldrop ("appellants") appeal the
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    circuit court's ruling that, based on the doctrine of sovereign
    immunity, it was without jurisdiction to hear appellants' appeal
    of a case decision by the State Water Control Board ("Board")
    issuing a modification of a Virginia Water Protection Permit
    ("VWPP") to Weanack Land Limited Partnership ("Weanack").   We hold
    that Code § 62.1-44.29 waived the Board's sovereign immunity from
    suit in this case.   Accordingly, we reverse the decision of the
    circuit court and remand the case to the circuit court.
    FACTS
    The federal Clean Water Act ("CWA") requires that an
    applicant for a federal license or activity which may result in a
    discharge to navigable waters provide the federal permitting
    agency with a certification from the state that the discharge will
    comply with specified sections of the CWA.   See 
    33 U.S.C. § 1341
    .
    These certifications are commonly called "§ 401" certifications.
    In the Commonwealth, the Board issues such a certification in the
    form of a VWPP pursuant to Code § 62.1-44.15:5.
    Weanack owns land adjacent to the James River in Charles City
    County that is used as a transfer point for barges off-loading
    cargo, including municipal waste.   In October 1995, the Board
    issued a VWPP to Weanack for dredge and fill operations.
    In October 1997, Weanack requested a modification of the 1995
    VWPP pursuant to Code § 62.1-44.15:5 in order to expand and
    enlarge the port facility.   The Board provided a public comment
    period during which it received comments from Jearald D. Cable
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    ("Cable").    Cable also requested a public hearing, which the Board
    denied.   The Board issued the modification to the VWPP on March
    16, 1998.
    Appellants appealed the Board's issuance of the modified VWPP
    and the Board's denial of Cable's request for a public hearing to
    the circuit court.    Both Weanack and the Board demurred to
    appellants' petition for appeal, arguing, among other grounds,
    that sovereign immunity barred judicial review of the Board's
    issuance of the modified VWPP.
    The circuit court heard oral arguments on the demurrer and
    held that the doctrine of sovereign immunity precluded judicial
    review of the Board's decision to modify the VWPP.   The circuit
    court found that Code § 62.1-44.29 authorizes judicial review of
    final decisions of the Board, and that Code section does not
    specifically list Code § 62.1-44.15:5 as a section for which
    judicial review is authorized.    Therefore, the circuit court
    opined that Code § 62.1-44.29 does not waive sovereign immunity to
    authorize judicial review of the issuance of the VWPP.     This
    appeal followed.
    ANALYSIS
    Code § 62.1-44.29 provides, in part:
    Any owner aggrieved by, or any person who
    has participated, in person or by submittal
    of written comments, in the public comment
    process related to, a final decision of the
    Board under §§ 62.1-44.15(5), 62.1-44.15
    (8a), (8b), and (8c), 62.1-44.16,
    62.1-44.17, 62.1-44.19 or § 62.1-44.25,
    - 3 -
    whether such decision is affirmative or
    negative, is entitled to judicial review
    thereof in accordance with the provisions of
    the Administrative Process Act (§ 9-6.14:1
    et seq.) if such person meets the standard
    for obtaining judicial review of a case or
    controversy pursuant to Article III of the
    United States Constitution.
    Code § 62.1-44.15(5) gives the Board authority
    [t]o issue certificates for the discharge of
    sewage, industrial wastes and other wastes
    into or adjacent to or the alteration
    otherwise of the physical, chemical or
    biological properties of state waters under
    prescribed conditions and to revoke or amend
    such certificates.
    In Alliance to Save the Mattaponi v. Commonwealth ex rel.
    State Water Control Bd., 
    30 Va. App. 690
    , 696, 
    519 S.E.2d 413
    , 416
    (1999), this Court held that the VWPP for a reservoir project is
    "a certificate for the alteration of state waters" pursuant to
    Code § 62.1-44.15(5).   We then held that Code § 62.1-44.29, "by
    reference to the Board's authority under Code § 62.1-44.15(5),
    expressly waives the Board's sovereign immunity as to the grant of
    that permit."   Id. at 697, 
    519 S.E.2d at 416
    .   We stated:
    Code § 62.1-44.15:5 establishes that a
    VWPP "shall constitute the certification
    required under § 401 of the [CWA]."
    Although Code § 62.1-44.15:5 makes no
    mention of judicial review, Code
    § 62.1-44.29 expressly waives the sovereign
    immunity enjoyed by the Board's grant or
    denial of a VWPP on the ground that a VWPP
    is a permit for the alteration of state
    waters within the scope of that statute's
    waiver.
    Id. at 696, 
    519 S.E.2d at 416
    .
    - 4 -
    Appellants' case is controlled by the decision in Alliance.
    Therefore, we hold that the doctrine of sovereign immunity did not
    bar appellants' appeal of the Board's modification of the VWPP. 1
    Accordingly, we reverse the decision of the circuit court and
    remand the case to the circuit court for further proceedings in
    accordance with Alliance.
    Reversed and remanded.
    1
    In Commonwealth v. Burns, 
    240 Va. 171
    , 174, 
    395 S.E.2d 456
    , 457 (1990), the Supreme Court held that panel decisions of
    the Court of Appeals are subject to the rule of stare decisis
    and each panel is bound by the decisions of other panels until
    corrected through the en banc hearing process. See Code
    § 17.1-402(C).
    - 5 -
    

Document Info

Docket Number: 2337982

Filed Date: 12/7/1999

Precedential Status: Non-Precedential

Modified Date: 10/30/2014