State Water Control Board v. Crutchfield

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

STATE WATER CONTROL BOARD,
DEPARTMENT OF ENVIRONMENTAL
QUALITY, ET AL.

v. Record No. 021507 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 17, 2003

FRANCES BROADDUS CRUTCHFIELD, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal originates from a final decision of the State

Water Control Board (the Board). We primarily consider whether

the petitioner landowners properly perfected their appeal in the

circuit court and whether they have standing to challenge the

Board's decision granting a permit for the discharge of treated

wastewater into a river adjoining their land.

In April 1999, the Board, under authority provided in Code

§ 62.1-44.15(5) of the State Water Control Law, Code §§ 62.1-

44.2 through –44.34:28, granted Hanover County a Virginia

Pollution Discharge Elimination System Permit (the permit). The

permit allows the County to discharge up to ten million gallons

per day of treated wastewater into the Pamunkey River (the

river) adjacent to property owned by Frances B. Crutchfield and

her son, Henry R. Broaddus (collectively, the petitioners).

The petitioners filed a petition for appeal in the Circuit

Court of the City of Richmond against the Board and the
Department of Environmental Quality (DEQ) (collectively, the

Board), asking that the court declare the permit invalid. In

response, the Board filed a demurrer asserting that the

petitioners lacked standing to pursue their appeal. The Board

also asked the court to dismiss the appeal on the ground that

the petitioners failed to name the County as a party to the

appeal in a timely manner.

The circuit court overruled the demurrer, holding that the

petitioners alleged standing by claiming injury to the historic

sites located on their property. The court allowed the

petitioners to add the County as a party to the appeal, but

denied them leave to amend their petition regarding their

claimed injuries.

After hearing evidence on the question of standing, the

circuit court dismissed the appeal with prejudice on the ground

that the petitioners had not established standing because they

failed to demonstrate "any actual or imminent injury." The

court held that the petitioners' claims of injury merely

constituted "abstract distress."

The petitioners appealed from the circuit court's judgment

to the Court of Appeals, which reversed the judgment in an

unpublished opinion. Crutchfield v. State Water Control Bd.,

Record No. 1095-01-2 (April 2, 2002). The Court of Appeals

remanded the case for a hearing on the merits of the petition,

2
holding that the petitioners had standing to challenge the

Board's issuance of the permit. The Court of Appeals also

concluded that the circuit court abused its discretion in

refusing to allow the petitioners leave to amend the allegations

of their petition, and held that the petitioners' failure to

name the County in the original petition did not create a

jurisdictional defect in the proceedings.

The Board and the County appealed from the Court of

Appeals' judgment. We awarded an appeal based on our

determination that the Court of Appeals' decision involves

matters of significant precedential value. See Code § 17.1-

410(B).

The following facts are relevant to this appeal. The

petitioners own an 878-acre tract of land in Hanover County

known as "Newcastle Farm" (the farm). The farm is bordered for

several miles by the Pamunkey River and contains the remains of

the colonial-era town of Newcastle, which was founded in 1738

and is listed as a Virginia Historic Landmark. The farm also

includes part of a former plantation, known as Marlbourne, which

is listed in the National Historic Landmark Registry.

The County sought the permit to facilitate its planned

Totopotomoy Wastewater Treatment Plant. Under the County's

plan, treated wastewater will be transported about eight miles

from the plant to the Pamunkey River through a buried 36-inch-

3
diameter pipeline, which will cross the petitioners' land. To

install the pipeline, the County acquired by condemnation from

the petitioners a 50-foot-wide easement passing through the

center of their farm. The County also obtained by condemnation

an additional acre near the center of the farm's river frontage

to construct reaeration and discharge structures necessary for

the project. The County's plan will cause the treated

wastewater to be discharged from an outfall pipe located on the

river bottom about 50 yards upstream from the petitioners' boat

ramp, irrigation pump, and "picnic-swimming area."

In considering the County's permit application, the Board

held a public hearing during which the petitioners voiced their

objections to the proposed project. The petitioners also

submitted written comments in opposition to the project.

In April 1999, the Board granted the County's permit

request. The petitioners timely filed a notice of appeal and

petition for appeal in the circuit court. In their petition for

appeal, they alleged that the Board's decision would result in

the "effective termination of existing beneficial uses of the

Pamunkey River for recreation."

The petitioners attached as an exhibit to their petition a

letter they had submitted to the DEQ as part of the "public

comment" process. In the letter, the petitioners alleged that

the proposed discharge system would interfere with existing

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recreational uses of the river. The petitioners also stated in

the letter that several people have used "the area immediately

downstream from the proposed discharge [site] for swimming for

many years. Those using this area are not limited to the

property owners." Additionally, the petitioners stated that the

farm "contains significant, documented historic resources that

would indeed be adversely affected by construction of the

proposed discharge pipe, reaeration structure, and outfall."

The circuit court granted the Board's request to depose the

petitioners on the issue of their standing to appeal the Board's

decision. In her deposition, Crutchfield testified that she was

concerned that installation of the pipeline would adversely

affect the historic value of the property and would destroy

"relics" and other items of archeological importance.

Crutchfield also testified that if the pipeline is installed,

she will no longer swim, fish, or canoe in the river, and the

enjoyment she derives from camping near the river will be

impaired.

In his deposition, Broaddus testified that the presence of

the discharge structure and pipeline would hinder his enjoyment

of the farm's historic resources and recreational amenities. He

further testified that the proposed discharge structure would be

within sight of the Newcastle Town ruins located on the farm.

Broaddus also stated that operation of the discharge facility

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and pipeline system will cause him to abandon or decrease the

frequency of his recreational activities in the river.

The Board presented evidence of a "cultural resources

investigation," which concluded that the County's project would

not affect the farm's historic significance. The circuit court

also received the results of an "archeological evaluation"

indicating that the farm's cultural resources already had been

impaired by farming operations, and that the portions of the

farm affected by the proposed project did "not contain

sufficient integrity to yield any further significant

information about the past." After hearing this evidence, the

circuit court dismissed the petitioners' appeal, holding that

they failed to establish injury to the farm's historic resources

and, thus, failed to demonstrate standing to challenge the

Board's decision. 1

On appeal in this Court, the Board first argues that the

Court of Appeals erred in affirming the circuit court's decision

permitting the petitioners to add the County as a party to the

appeal. The Board contends that Rule 2A:4 required the

petitioners to serve the County, a necessary party to the

1
In reaching this conclusion, the circuit court did not
consider the petitioners' allegations and evidence regarding
injury to their recreational interests based on its earlier
holding that the original petition failed to allege injury to
those interests.

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appeal, with a copy of their petition at the time it was filed,

and that the petitioners' failure to do so created a

jurisdictional defect in the proceedings. We disagree with the

conclusion urged by the Board.

The petitioner's appeal to the circuit court was based on

the Administrative Process Act (the Act), Code §§ 2.2-4000

through –4033, which provides that an appeal of a decision by

the Board must be brought "in the manner provided by the rules

of the Supreme Court of Virginia." Code § 2.2-4026. Such

appeals brought under the Act are governed by Part 2A of the

Rules of this Court. See Rule 2A:1; Virginia Ret. Sys. v.

Avery, 262 Va. 538, 540-42, 551 S.E.2d 612, 613-14 (2001).

Because the petitioners' notice of appeal and original

petition for appeal were timely filed within the 30-day time

periods specified in Rules 2A:2 and 2A:4, the circuit court had

jurisdiction over the subject of the appeal. 2 See id. at 542,

551 S.E.2d at 614; see also Occoquan Land Dev. Corp. v. Cooper,

239 Va. 363, 366-67, 389 S.E.2d 464, 466 (1990). The

petitioners' failure to have a copy of the petition served on

2
We do not address any other requirements of Rule 2A:2
pertaining to the petitioners' notice of appeal because the
County and the Board did not challenge the petitioners'
compliance with this Rule either in the circuit court or in
their brief filed with this Court.

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the County did not divest the court of this jurisdiction. See

Avery, 262 Va. at 542, 551 S.E.2d at 614.

The Board incorrectly asserts that the language of Rule

2A:4(a) precluded the circuit court from permitting the County

to be added as a party in the case after expiration of the 30-

day time period for filing the petition. This provision states:

Within 30 days after the filing of the notice of
appeal, the appellant shall file his petition for
appeal with the clerk of the circuit court named in
the first notice of appeal to be filed. Such filing
shall include all steps . . . to cause a copy of the
petition to be served (as in the case of a bill of
complaint in equity) on the agency secretary and on
every other party.

Although the plain language of this provision required the

petitioners to serve a copy of their original petition on the

County, their failure to do so did not prevent the circuit court

from permitting them to amend their petition at a later date to

add the County as a party. The contrary argument advanced by

the Board would improperly transform the service of process

provisions of Rule 2A:4 into a jurisdictional requirement

mandating dismissal of the appeal in the circuit court. See

Avery, 262 Va. at 542, 551 S.E.2d at 614. We decline to apply

Rule 2A:4 in this manner in the absence of language in the Rule

compelling such a result. Thus, we conclude that the circuit

court's decision permitting the County to be added as a party to

the appeal was a matter subject to the court's discretionary

8
authority. See Browning-Ferris Indus. of S. Atl., Inc. v.

Residents Involved in Saving the Env't, Inc., 254 Va. 278, 282-

83, 492 S.E.2d 431, 433-34 (1997).

The present record supports this discretionary

determination. The County, as the entity granted the discharge

permit, was a necessary party in the case. Id. at 282, 492

S.E.2d at 433-34; see Asch v. Friends of the Cmty. of Mount

Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818

(1996). Thus, the circuit court could not determine the merits

of the appeal and render a valid judgment in the case unless the

County was added as a party. Atkisson v. Wexford Assocs., 254

Va. 449, 455, 493 S.E.2d 524, 527 (1997); Asch, 251 Va. at 91,

465 S.E.2d at 818; Schultz v. Schultz, 250 Va. 121, 124, 458

S.E.2d 458, 460 (1995). Moreover, we observe that the County

did not object to being added as a party in the petitioners'

appeal. Accordingly, we conclude that the Court of Appeals did

not err in affirming the circuit court's decision permitting the

County to be added as a party in the case.

We next consider whether the Court of Appeals erred in

concluding that the circuit court abused its discretion in

denying the petitioners leave to amend the allegations of their

original petition. The Board asserts that because Rule 2A:4

required that the original petition state the reasons why the

petitioners contended the Board's decision was unlawful, the

9
circuit court did not have authority to allow amendment of the

petition to state a "new" ground of injury, namely, injury to

the petitioners' recreational use of the farm and the river.

We find no merit in the Board's assertion that the original

petition and letter exhibit failed to allege injury to the

petitioners' recreational use of the farm and the river. In the

letter attached to their original petition, the petitioners

alleged that the proposed discharge of wastewater will interfere

with existing uses of the river. In that letter, the

petitioners discussed the recreational use, including swimming,

of the area immediately downstream from the proposed discharge

site, and stated that "[t]hose using this area are not limited

to the property owners."

A fair inference from these statements is that the

petitioners, who are the property owners, use the river and

their adjacent property for recreational purposes. Therefore,

we are not presented with an issue whether Rule 2A:4 precludes a

petitioner from amending a petition to add a different

allegation of injury, and we limit our consideration to the

issue whether the circuit court abused its discretion in denying

the petitioners leave to amend their petition regarding their

original claims of injury.

We observe that the provisions of Rule 2A:4 do not prevent

a circuit court from exercising its discretion either to grant

10
or deny a request to amend a timely filed petition for appeal.

However, like any other decision submitted to a circuit court's

discretion, the refusal to allow such amendments must be

supported by the record.

Here, the record shows that this was the petitioners' first

request to amend the allegations of their petition, and the

proposed amendments did not add any new claims of injury. In

addition, the record does not indicate that the petitioners'

request would have caused any delay in the court's consideration

of the merits of the appeal or would have resulted in other

prejudice to the parties in the case. Based on these factors,

we conclude that the Court of Appeals did not err in holding

that the circuit court abused its discretion in denying the

petitioners' request to amend the allegations of their original

petition.

The Board next argues that the Court of Appeals erred in

concluding that the petitioners had standing to appeal the

Board's decision, and in failing to give deference to the

circuit court's "factual finding" that the petitioners failed to

demonstrate an actual or imminent injury to the farm's historic

resources. We disagree with the Board's arguments.

The requirements for standing to challenge a final decision

by the Board are stated in Code § 62.1-44.29, which provides in

relevant part:

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 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 . . . is entitled to
judicial review thereof in accordance with the
provisions of the Administrative Process Act . . . if
such person meets the standard for obtaining judicial
review of a case or controversy pursuant to Article
III of the United States Constitution. A person shall
be deemed to meet such standard if (i) such person has
suffered an actual or imminent injury which is an
invasion of a legally protected interest and which is
concrete and particularized; (ii) such injury is
fairly traceable to the decision of the Board and not
the result of the independent action of some third
party not before the court; and (iii) such injury will
likely be redressed by a favorable decision by the
court.

The language of this statute reflects the holdings of the United

States Supreme Court regarding the requirements of standing

under the "case" or "controversy" provisions of Article III of

the United States Constitution. Mattaponi Indian Tribe v.

Commonwealth, 261 Va. 366, 376, 541 S.E.2d 920, 925 (2001).

The standing provisions of Code § 62.1-44.29 require

persons challenging a final decision by the Board to establish

that they meet all three enumerated requirements of the statute

before a court will consider the merits of their challenge to a

governmental action. These components of Article III standing

are not merely requirements of pleading, but must be supported

by adequate evidence. Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992); see Pye v. United States, 269 F.3d 459, 467

(4th Cir. 2001).

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 For purposes of Article III standing, the "injury in fact"

that must be established in a case involving a plaintiff's

recreational and aesthetic interests is not injury to the

environment, but injury to the plaintiff. Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181

(2000); Piney Run Pres. Ass'n v. County Comm'rs, 268 F.3d 255,

263 (4th Cir. 2001), cert. denied, 535 U.S. 1077 (2002). This

requirement precludes a plaintiff from alleging a generalized

grievance to vindicate an interest shared by the entire public.

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204

F.3d 149, 156 (4th Cir. 2000); see Lujan, 504 U.S. at 573-74;

Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449

(10th Cir. 1996).

A plaintiff must show that the alleged injury will affect

him in a personal and individual manner. Lujan, 504 U.S. at 560

n.1; Gaston Copper Recycling Corp., 204 F.3d at 156. However,

the claimed injury need not be a large one, and an "identifiable

trifle" will be sufficient to meet the "injury in fact"

requirement. LaFleur v. Whitman, 300 F.3d 256, 270-71 (2nd Cir.

2002); Gaston Copper Recycling Corp., 204 F.3d at 156; Sierra

Club v. Cedar Point Oil Co., 73 F.3d 546, 557 (5th Cir. 1996).

Thus, in "environmental cases," it generally is sufficient if a

plaintiff establishes that he uses the affected area, and that

he is a person "for whom the aesthetic and recreational values

13
of the area will be lessened" by the defendant's actions.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 183 (quoting

Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); accord Piney

Run Pres. Ass'n, 268 F.3d at 263. Scientific proof of actual

harm to an environmental resource is not required to establish

standing in such cases. See Gaston Copper Recycling Corp., 204

F.3d at 159-60.

We also note that the location of the petitioners' farm is

relevant to the present standing inquiry, because the farm is

contiguous to, and touches, the Pamunkey River. So situated,

the farm is "[r]iparian land," and the petitioners are

"[r]iparian owners" of that land. See Code §§ 62.1-104(5) and –

104(6). Riparian owners have the right to make reasonable use

of the water flowing past their land, and they have a right to

enjoy the recreational and aesthetic advantages that are

conferred on such land adjoining a watercourse. Thurston v.

City of Portsmouth, 205 Va. 909, 911-12, 140 S.E.2d 678, 680

(1965); Taylor v. Commonwealth, 102 Va. 759, 773, 47 S.E. 875,

880-81 (1904); see Carr v. Kidd, 261 Va. 81, 95, 540 S.E.2d 884,

892-93 (2001).

In accordance with these principles, we conclude that the

circuit court erred in its standing determination because the

petitioners' allegations and evidence of injury to their

14
recreational interests and use of the river established that

they have met all three requirements of Article III standing. 3

The petitioners have alleged and established an "actual or

imminent injury" that is "concrete and particularized" in

nature, rather than a mere statement of abstract concern or a

general averment of injury. See Code § 62.1-44.29(i). This

imminent injury includes injury to their recreational enjoyment

of their property and the river's resources to which they have a

recognized right as riparian landowners. As stated above, in a

letter accompanying their original petition, the petitioners

inferentially alleged that they use the area immediately

downstream from the proposed discharge site for recreational

purposes, including swimming. They also alleged that the

proposed discharge of wastewater would interfere with existing

recreational uses of the river.

The evidence showed that the County's wastewater treatment

project would require the use of a buried three-foot-diameter

pipeline placed through the petitioners' land. An outfall

facility for treated sewage will be located on the one-acre site

taken from the petitioners by condemnation, which is surrounded

by the remaining acreage of the farm. The proposed permit will

3
Because we reach this conclusion based solely on these
allegations and evidence, we need not consider the sufficiency
of the petitioners' additional allegations and evidence
concerning injury to the farm's historic resources.

15
allow the County to discharge as much as ten million gallons of

treated wastewater daily from this outfall facility into the

Pamunkey River only 50 yards upstream from the petitioner's boat

ramp, irrigation pump, "swimming hole," and picnic area.

The petitioners both testified that they regularly use the

river for swimming, fishing, and boating, and that they would be

required either to decrease or discontinue these activities

altogether if the County is allowed to operate its discharge

facilities under the permit. The petitioners further stated

that the outfall location would have an adverse impact on their

recreational use of the river, and that their aesthetic

enjoyment of the farm and river would be harmed by the daily

discharge of treated wastewater into the river.

We also conclude that the petitioners' injuries are "fairly

traceable" to the Board's decision to issue the permit to the

County and do not result from the actions of a third party not

before the court. See Code § 62.1-44.29(ii). Without the permit

allowing the discharge of treated wastewater, the injuries that

were the subject of the petitioners' testimony would not occur.

The County would not be able to discharge the millions of gallons

of treated wastewater into the river adjacent to the farm, and

would have no need to construct the pipeline through the farm or

to build the accompanying discharge structures. Thus, in the

absence of the permit, the petitioners' use and enjoyment of the

16
farm and the river for recreational purposes would remain

unaffected.

Finally, we observe that the petitioners' injuries would be

"redressed" by a favorable judgment of the circuit court. See

Code § 62.1-44.29(iii). The petitioners asked that the circuit

court declare the permit "invalid, void and of no effect." As

stated above, the petitioners' injuries would not occur in the

absence of a permit issued by the Board because the County would

be unable to construct the outfall facilities, install the

pipeline, and discharge the treated wastewater into the river

without a permit authorizing these actions. Accordingly, we

conclude that the Court of Appeals did not err in holding that

the petitioners have established standing to bring their appeal

under the Act in the circuit court.

For these reasons, we will affirm the Court of Appeals'

judgment, and will remand the case to the Court of Appeals with

direction that the case be remanded to the circuit court for a

trial on the merits of the petitioners' claims.

Affirmed.

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