COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
ALLIANCE TO SAVE THE MATTAPONI, CHESAPEAKE
BAY FOUNDATION, INC., MATTAPONI AND
PAMUNKEY RIVERS ASSOCIATION, SIERRA CLUB,
PAULETTE BERBERICH AND WARREN MOUNTCASTLE
OPINION BY
v. Record No. 2310-98-1 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA, ex rel.
STATE WATER CONTROL BOARD
AND CITY OF NEWPORT NEWS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Katherine E. Slaughter (Southern
Environmental Law Center, on briefs), for
appellant.
Deborah L. Feild, Assistant Attorney General
(Mark L. Earley, Attorney General; Roger L.
Chaffe, Senior Assistant Attorney General,
on brief), for appellee Commonwealth of
Virginia, ex rel. State Water Control Board.
M. Scott Hart (James E. Ryan, Jr.; George A.
Somerville; Matthew M. Farley; Stuart E.
Katz, City Attorney; Allen L. Jackson,
Deputy City Attorney; Mays & Valentine, on
brief), for appellee City of Newport News.
Four organizations and two individuals ("appellants") appeal
the circuit court's ruling that they lacked standing to challenge
the decision of the State Water Control Board ("Board") to grant a
Virginia Water Protection Permit ("VWPP") to the City of Newport
News ("the City"). Appellants contend they have standing under
either Code § 62.1-44.29 of the State Water Control Law ("SWCL")
or Code § 9-6.14:16 of the Virginia Administrative Process Act
("VAPA"). The Board and the City respond on multiple grounds,
collectively arguing that: (1) neither the SWCL nor the VAPA
establishes a waiver of sovereign immunity enjoyed by the Board's
decision to grant a VWPP; (2) appellants lack standing under the
SWCL because they have not suffered "actual or imminent injury"
and any such injury is not traceable to the Board's decision; (3)
the organizational appellants representing the interests of their
members do not have standing under the SWCL because
representational standing has not been specifically authorized by
statute; and (4) appellants lack standing under the VAPA because
they are not "parties aggrieved" by the Board’s decision to issue
the VWPP.
We hold that the SWCL waives the Board's sovereign immunity
from suit but that appellants lack standing to challenge the
Board's action in granting the City a VWPP. Accordingly, we
affirm the decision of the circuit court.
I.
FACTUAL BACKGROUND
In July 1993, the City applied to the Board for a VWPP for
its proposed King William Reservoir water supply project. The
King William Reservoir project is a regional undertaking sponsored
by a coalition of local governments, including Newport News,
Williamsburg and York County, for the purpose of identifying and
developing a regional water supply to meet projected needs through
- 2 -
the year 2040. Once completed, the reservoir will comprise a
1,526 acre impoundment created by a new dam across Cohoke Creek, a
small tributary of the Pamunkey River located between the Pamunkey
and Mattaponi Rivers in King William County. The project will
also entail the construction of a water intake and pumping station
to withdraw water from the nearby Mattaponi River and convey it to
the reservoir.
Because the dam will be constructed by "the discharge of
dredged or fill material" into Cohoke Creek, § 404 of the federal
Clean Water Act ("CWA") requires the City, as the lead agency of
the coalition governments, to obtain a construction permit from
the United States Army Corps of Engineers ("Corps"). See 33
U.S.C. § 1344(a),(d). Under § 401(a) of the CWA, the Corps may
not issue a permit for an activity resulting in a discharge into
wetlands unless the state where the discharge takes place
certifies that the discharge will comply with "applicable
provisions" of the CWA or until the state waives such
certification. 1 See 33 U.S.C. § 1341(a)(1).
The Corps may not issue a permit "if certification has been
denied by the [s]tate . . . ." Id. Furthermore, under § 401(d)
of the CWA, "any effluent limitations and other limitations, and
monitoring requirements" that are included in the state's
1
The state certification requirements of § 401 "shall be
waived" if the state "fails or refuses to act on [the Corps']
request for certification" within a year of receipt of such
request. See 33 U.S.C. § 1341(a)(1).
- 3 -
certification "shall become a condition on any Federal license or
permit . . . ." 33 U.S.C. § 1341(d).
Code § 62.1-44.15(5) of the SWCL authorizes the Board to
issue certificates for the alteration of the physical, chemical or
biological properties of state waters. The SWCL further
designates the VWPP as "the certification required under Section
401" of the CWA. Code § 62.1-44.15:5(A). "The Board shall issue
a [VWPP] for an activity requiring § 401 certification if it has
determined that the proposed activity is consistent with the
provisions of the [CWA] and will protect instream beneficial
uses." Code § 62.1-44.15:5(B). "Conditions contained in a [VWPP]
may include, but are not limited to, the volume of water which may
be withdrawn as a part of the permitted activity." Id.
On December 16, 1997, the Board issued a VWPP to the City.
The VWPP contained a number of "Special Conditions" establishing
various limitations and monitoring requirements for the project.
For example, the VWPP requires the City to develop a monitoring
plan designed to analyze the impact of the project on the
Mattaponi River's salinity. The permit also sets forth conditions
requiring the reservoir to release a minimum amount of water below
the dam on Cohoke Creek and authorizing the withdrawal of up to
seventy-five million gallons of water per day from the Mattaponi
River.
Subsequently, the City, the Mattaponi Tribe and appellants, a
group of petitioners consisting of the Alliance to Save the
- 4 -
Mattaponi, the Chesapeake Bay Foundation, the Mattaponi and
Pamunkey Rivers Association, the Sierra Club, Paulette Berberich
and Warren Mountcastle, appealed the Board's decision. Both the
Board and the City demurred to appellants' petition for appeal on
grounds substantially similar to those raised before this Court. 2
At the parties' request, the circuit court heard oral argument on
both demurrers at the same time, sustaining the demurrers on
August 7, 1998 in a document entitled "Case Under Advisement."
Without elaborating upon the grounds for its decision, the court
wrote that appellants "lack standing to maintain [their] suit."
The court disagreed, however, with the Board's position that
appellants' suit was barred by the doctrine of sovereign immunity.
The court entered a final order dismissing appellants' appeal on
September 11, 1998. This appeal followed.
2
Collectively, the parties alleged on demurrer: (1)
appellants lacked standing under the VAPA because they were not
parties to the Board's decision; (2) appellants lacked standing
under Code § 62.1-44.29 of the SWCL because they have not
suffered actual or imminent injury since the City cannot proceed
with the project unless and until it receives a permit from the
Corps; (3) appellants lacked standing under Code § 62.1-44.29
because their injuries, if any existed, would not be traceable
to the Board's decision because the project may not proceed
unless the Corps issues a permit; and (4) the organizational
parties to appellants' appeal lacked standing because they
alleged no injury of their own and cannot rely on their members'
injuries to sue in a "representational capacity" in Virginia.
The Board also argued that appellants' appeal was barred by the
doctrine of sovereign immunity.
- 5 -
II.
SOVEREIGN IMMUNITY
The Board contends that the doctrine of sovereign immunity
bars appellants' appeal to the circuit court because neither the
SWCL nor the VAPA explicitly waives such immunity. We disagree,
finding an express waiver of immunity in the provisions of the
SWCL.
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.
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.
Code § 62.1-44.15(5) (emphasis added).
We hold that the VWPP for the King William Reservoir project
is a certificate for the alteration of state waters constituting
Cohoke Creek and the Mattaponi River. See Code § 62.1-44.15(5).
The VWPP certifies that the discharge of fill material into Cohoke
Creek complies with the CWA. The VWPP also contains a number of
- 6 -
conditions relating to the operation of the proposed reservoir
that will directly affect the water levels of Cohoke Creek and the
Mattaponi River and which, under federal law, must be incorporated
into any permit subsequently issued by the Corps under § 404 of
the CWA. See 33 U.S.C. § 1341(d). Furthermore, the Board's
regulations confirm that a VWPP is a permit for the alteration of
state waters. See 9 VAC § 25-210-50(A) (stating that "[n]o person
shall dredge, fill or discharge any pollutant into, or adjacent to
surface waters, or otherwise alter the physical, chemical or
biological properties of surface waters, except as authorized
pursuant to a [VWPP] . . ." (emphasis added)). Because the VWPP
for the King William Reservoir is a permit for the alteration of
state waters, we hold 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.
Code § 62.1-44.29 authorizes judicial review of "final
decision[s]" made by the Board under Code § 62.1-44.15(5). 3 We
3
Code § 62.1-44.29 states in pertinent part:
Any owner aggrieved by, or any person who has
participated . . . 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, whether such
decision is affirmative or negative, is
entitled to judicial review thereof in
accordance with the provisions of the
Administrative Process Act . . . .
Code § 62.1-44.29 (emphasis added).
- 7 -
find the language of Code § 62.1-44.29 to be clear and the scope
of judicial review established therein to be unambiguously
defined. Broadly inclusive language in a statute is not ambiguous
if the legislature's objective requires such language. See Diggs
v. Commonwealth, 6 Va. App. 300, 302, 369 S.E.2d 199, 200 (1988).
As such, judicial construction is not required, and we will not
resort to legislative history or extrinsic facts to endow the
statute with its meaning. See id. Instead, we take the statute's
words as they are written and give them their plain meaning. See
id.
The Board contends that Code § 62.1-44.29 should not be
construed to allow judicial review of VWPP decisions because it
fails to separately and explicitly identify the precise type of
permit at issue in this case. In support of this argument the
Board notes that, while Code § 62.1-44.29 states that judicial
review is available for final decisions made pursuant to the
general authorization in Code § 62.1-44.15(5), the statute then
identifies specific types of permitting decisions under other code
sections which are to be afforded such review. See Code
§ 62.1-44.29 (authorizing judicial review of final decisions under
Code §§ 62.1-44.16, 62.1-44.17 and 62.1-44.19). The Board reasons
that, because the code section providing for the issuance of a
VWPP, Code § 62.1-44.15:5, is not specifically mentioned, judicial
review is limited to decisions made pursuant to the specific
permitting actions cited in Code § 62.1-44.29. We disagree.
- 8 -
First, we find no authority in support of the principle
advanced by the Board that Code § 62.1-44.29 must separately and
explicitly identify the precise type of permit at issue in order
for its legislative waiver of sovereign immunity to be effective
as to that permitting action, particularly where the statutory
language providing for judicial review is otherwise clear.
Indeed, we declined to require such specificity in Virginia Bd. of
Medicine v. VPTA, 13 Va. App. 458, 413 S.E.2d 59 (1991), where we
found an "explicit and limited waiver of sovereign immunity" in
general statutory language providing that "'[a]ny person affected
by . . . any [regulation]'" or any "'party aggrieved by . . . a
case decision'" has the right to judicial review against the
agency promulgating the regulation or case decision at issue. Id.
at 465-66, 413 S.E.2d at 64 (quoting Code § 9-6.14:16(A)).
Furthermore, the Board's construction effectively negates the
express language of Code § 62.1-44.29 providing for judicial
review of final decisions made under Code § 62.1-44.15(5). See
Commonwealth v. Hawkins, 10 Va. App. 41, 44, 390 S.E.2d 3, 5
(1990) (stating that statutes "must be read so as to give effect
to the plain meaning of all of [their] terms").
Second, the premise underlying the Board's position does not
withstand scrutiny. The Board argues that if the legislature had
intended to establish judicial review for final decisions
encompassed within the "general" language of Code § 62.1-44.15(5),
there would be no need to include the specific and redundant
- 9 -
references to Code §§ 62.1-44.16, 62.1-44.17 and 62.1-44.19. They
contend that by giving the general language of Code
§ 62.1-44.15(5) effect, the legislature’s inclusion of the
specific references is made "an unnecessary and duplicative act."
However, a close examination of Code § 62.1-44.29 makes
manifest that the specific references address final decisions by
the Board that are separate and distinct from those made under
Code § 62.1-44.15(5). Code § 62.1-44.15(5) authorizes the Board
to issue certificates for the discharge of industrial wastes,
other wastes and sewage or for the alteration of state waters by
other means. Code § 62.1-44.17 authorizes the Board: (1) to
require the installation of facilities or the adoption of
appropriate measures necessary to prevent the discharge of "other
wastes" into state waters and (2) to issue certificates for the
"handling, storing, distribution or production" of other wastes. 4
4
Code § 62.1-44.17(1) states in pertinent part:
Any owner who handles, stores, distributes,
or produces other wastes as defined in
§ 62.1-44.3, any owner who causes or permits
same to be handled, stored, distributed or
produced or any owner upon or in whose
establishment other wastes are handled,
stored, distributed or produced shall upon
request of the Board install facilities
approved by the Board or adopt such measures
approved by the Board as are necessary to
prevent the escape, flow or discharge into
any state waters when the escape, flow or
discharge of such other wastes into any state
- 10 -
Although Code §§ 62.1-44.16 and 62.1-44.19 authorize the Board to
issue certificates for the discharge of wastes into state waters,
they also authorize the Board to make decisions that do not
involve the issuance of certificates for the discharge of wastes
or for the alteration of state waters. Specifically, Code
§ 62.1-44.16 gives the Board the authority, inter alia, to approve
facilities for the treatment as well as the control of industrial
wastes and other wastes. 5 Code § 62.1-44.19 authorizes the Board,
inter alia, to certify the construction, expansion or operation of
a sewerage system or sewage treatment works and to determine
waters would cause pollution of such state
waters.
Code § 62.1-44.17(1).
5
Code § 62.1-44.16(1) states in pertinent part:
Any owner who erects, constructs, opens,
reopens, expands or employs new processes in
or operates any establishment from which
there is a potential or actual discharge of
industrial wastes or other wastes to state
waters shall first provide facilities
approved by the Board for the treatment or
control of such industrial wastes or other
wastes.
Application for such discharge shall be
made to the Board[, which, upon approval of
the application,] shall grant a certificate
for the discharge of the industrial wastes
or other wastes into state waters or for the
other alteration of the physical, chemical
or biological properties of state waters
. . . .
Code § 62.1-44.16(1).
- 11 -
minimum treatment requirements. 6 See 9 VAC 25-32-10; 9 VAC
25-32-30(C); 9 VAC 25-32-60(A)(2) (authorizing the Board, pursuant
to the statutory authority of Code §§ 62.1-44.16, 62.1-44.17 and
62.1-44.19, to issue Virginia Pollution Abatement permits for
"pollutant management activities," which include the operation of
systems for the prevention, reduction, storage, treatment,
separation, disposal, recycling or reclamation of wastes).
Indeed, as their captions suggest, the waste statutes
generally include provisions for the treatment of wastes and for
the regulation of the facilities where wastes are stored or
produced. See Code §§ 62.1-44.16, 62.1-44.17 (entitled
"Regulation of Industrial Establishments"); Code § 62.1-44.19
(entitled "Regulation of Sewage Discharges"). See also Hawkins v.
Commonwealth, 255 Va. 261, 269, 497 S.E.2d 839, 842 (1998)
6
Code § 62.1-44.19 states in pertinent part:
A. Before any owner may erect,
construct, open, expand or operate a sewerage
system or sewage treatment works which will
have a potential discharge or actual
discharge to state waters, such owner shall
file with the Board an application for a
certificate in scope and detail satisfactory
to the Board.
B. If the application involves a system
or works from which there is or is to be a
discharge to state waters, . . . [t]he Board
shall approve such application if it
determines that minimum treatment
requirements will be met and that the
discharge will not result in violations of
water quality standards.
Code § 62.1-44.19 (emphasis added).
- 12 -
(stating that a title "may be read in an attempt to ascertain an
act's purpose").
Thus, the legislature's authorization of judicial review for
decisions made under Code §§ 62.1-44.16, 62.1-44.17 and
62.1-44.19, in addition to the class of decisions encompassed
within 62.1-44.15(5), is not redundant. See Code § 62.1-44.29.
Rather, the language is necessary to address comprehensively the
different decision-making authority granted to the Board under the
SWCL.
In summary, we hold that Code § 62.1-44.29 explicitly
provides for judicial review of the Board's decision to issue a
permit for the alteration of state waters. Because the VWPP for
the King William Reservoir project is such a permit, the doctrine
of sovereign immunity does not bar appellants' suit. 7
7
The Board also contends our recent decision in May Dep't
Stores v. Commonwealth, Dep't of Environmental Quality is
relevant to our disposition of this case. 29 Va. App. 589, 513
S.E.2d 880 (1999). However, we find our decision in May to be
inapposite. In May, we held that "where an agency's basic law
provides expressly for VAPA coverage of certain proceedings
under specified conditions and makes no provision for judicial
review of other proceedings, the unmentioned proceedings are
subject to the VAPA unless otherwise expressly excluded." Id.
at 594, 513 S.E.2d at 882. Unlike May, in this case the basic
law provides expressly for judicial review of the agency action
at issue. As such, we need not look to the provisions of the
VAPA for a waiver of sovereign immunity. Nor do we rely on the
provisions of the VAPA to analyze whether appellants have
standing. See Code § 9-6.14:3 (stating that the VAPA "does not
supersede or repeal additional procedural requirements in" an
agency's basic law).
- 13 -
III.
STANDING
Having established that the SWCL provides for a waiver of the
Board's sovereign immunity from judicial review of its decision to
grant or deny a VWPP, we must now determine whether appellants
have standing to challenge the decision at issue.
The SWCL provides that any person who has participated,
either in person or by the submission of written comments, in the
public comment process related to a final decision of the Board
under Code § 62.1-44.15(5) is entitled to judicial review of that
decision "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 § 62.1-44.29.
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.
Id.
Appellants contend they have standing to challenge the
Board's grant of a VWPP to the City because they meet the
three-part test for Article III standing enunciated in Code
- 14 -
§ 62.1-44.29. 8 We find that, under the statutes and regulations
applicable to the proposed reservoir project, the Army Corps of
Engineers must grant a § 404 permit for the discharge of fill
material into Cohoke Creek before construction of the King William
Reservoir project may proceed. Accordingly, we hold that
appellants do not have standing under Code § 62.1-44.29 to
challenge the Board's issuance of a VWPP because the injuries
alleged in their petition for appeal will result from the
independent action of the Corps, a third party not before the
circuit court. In light of this holding, the remaining arguments
of the Board and the City are rendered moot, and we will not
address them.
The CWA establishes a comprehensive program to restore and
maintain the chemical, physical and biological integrity of the
waters of the United States. See 33 U.S.C. § 1251(a); Route 26
Land Development Assoc. v. United States Government, 753 F. Supp.
8
Appellants filed affidavits with their petition for appeal
in which each appellant represented that the King William
Reservoir project will inflict injury upon it or its individual
members. Members of the Alliance to Save the Mattaponi, the
Chesapeake Bay Foundation ("CBF"), the Mattaponi and Pamunkey
Rivers Association, and the Sierra Club contend the construction
of the reservoir and subsequent withdrawal of water from the
Mattaponi River will harm them by damaging the ecosystems and
the aesthetic qualities of the Mattaponi River and Cohoke Creek,
which they use for boating, fishing, swimming, water supply, and
educational purposes. Paulette Berberich alleges the reservoir
will flood fifteen to twenty acres of land that she owns,
resulting in her loss of use and enjoyment of that land. Warren
Mountcastle, a landowner on the Mattaponi River, alleges the
project will harm his use, enjoyment, and economic value of his
real property due to the placement of an intake pipe nearby.
- 15 -
532, 536 (D. Del. 1990), aff’d, 961 F.2d 1568 (1992). Pursuant to
§§ 401 and 404 of the CWA, the Corps is authorized to issue
permits for the discharge of dredged or fill material into the
waters of the United States after obtaining a certification from
the state where the discharge originates that any such discharge
will comply with the CWA. See 33 U.S.C. §§ 1341(a)(1), 1344(a).
Although the certifying state may prevent the Corps from issuing a
§ 404 permit by denying the certification required by the CWA or
may issue a certification with limitations that become conditions
on any § 404 permit issued by the Corps, only the Corps, by
issuance of a § 404 permit, has the power to authorize an actual
discharge into the waters of the United States. See 33 U.S.C.
§§ 1341(a)(1), 1341(d). Indeed, in the absence of a state's
timely action "on a request for certification," the Corps is
authorized to proceed with a permitting action without the state's
certification. See 33 U.S.C. § 1341(a)(1).
Rules regarding the Corps' authority to issue § 404 permits
are codified at 33 C.F.R. Parts 230, 320 and 323. Part 230
establishes guidelines to implement the policies of the CWA
"through the control of discharges of dredged or fill material."
33 C.F.R. § 230.1(a),(b). The guidelines are "applicable to the
specification of disposal sites for discharges of dredged or fill
material into waters of the United States," 33 C.F.R. § 230.2(a),
and establish "conditions which must be satisfied in order to make
a finding that a proposed discharge of dredged or fill material
- 16 -
complies with" the CWA. 33 C.F.R. § 230.4. Part 320 contains the
Corps' general policies for evaluating all applications for
permits. See 33 C.F.R. § 320.4. See also Route 26 Land
Development, 753 F. Supp. at 536. Part 323 contains additional
policies, practices and procedures specifically applicable to the
Corps' "review of applications for . . . permits to authorize the
discharge of dredged or fill material into waters of the United
States pursuant to section 404 of the [CWA]." 33 C.F.R. § 323.1.
According to these rules and policies, the Corps "is neither
a proponent nor opponent of any permit proposal" and bases its
permitting decisions on a "public interest review." 33 C.F.R.
§ 320.1(a)(1),(4). The Corps may issue or deny a permit based on
its assessment of whether "the proposed activity and its intended
use" is in the public interest. See 33 C.F.R. § 320.4(a)(1).
The decision whether to issue a permit will
be based on an evaluation of the probable
impacts, including cumulative impacts, of the
proposed activity and its intended use on the
public interest. Evaluation of the probable
impact which the proposed activity may have
on the public interest requires a careful
weighing of all those factors which become
relevant in each particular case. The
benefits which reasonably may be expected to
accrue from the proposal must be balanced
against its reasonably foreseeable
detriments. The decision whether to
authorize a proposal, and if so, the
conditions under which it will be allowed to
occur are therefore determined by the outcome
of this general balancing process.
33 C.F.R. § 320.4(a)(1) (emphasis added). As to § 404 permits for
the discharge of dredged or fill material, Part 323 specifically
- 17 -
provides that the Corps will review such applications and, if it
"determines that the proposed discharge would comply with the
[Guidelines], . . . grant the permit unless issuance would be
contrary to the public interest." 33 C.F.R. § 323.6(a). Factors
that the Corps must balance in making its public interest
determination include, inter alia, "conservation, economics,
aesthetics, general environmental concerns, wetlands, historic
properties, fish and wildlife values, flood hazards, floodplain
values, land use, . . . recreation, water supply and conservation,
water quality, . . . considerations of property ownership, and, in
general, the needs and welfare of people." 33 C.F.R.
§ 320.4(a)(1).
As the foregoing regulations make clear, the Corps ultimately
authorizes the discharge of fill material into Cohoke Creek after
consideration of numerous factors, including some which are
co-incident with those considered by the Board in issuing a VWPP.
Compare Code § 62.1-44.15:5 (stating that the Board "shall issue"
a VWPP "if it has determined that the proposed activity is
consistent with the provisions of the [CWA] and will protect
instream beneficial uses," which include navigation, maintenance
of waste assimilation capacity, the protection of fish and
wildlife resources and habitat, recreation, cultural and aesthetic
values), with 33 C.F.R. § 323.6(a) (stating that the Corps shall
issue a § 404 permit if it determines that the proposed discharge
- 18 -
complies with the Guidelines and comports with the public
interest).
Moreover, we cannot say that the Board's issuance of a VWPP
has a "determinative or coercive effect" on the Corps' ultimate
decision to issue a § 404 permit for the King William Reservoir
project. See Bennett v. Spear, 520 U.S. 154, 169 (1997). In
Spear, the United States Supreme Court found that an injury was
fairly traceable to a biological opinion of the Fish and Wildlife
Service, notwithstanding the fact that the Service's opinion was
not "the very last step in the chain of causation," based on the
opinion's coercive effect on the ultimate decision-making agency. 9
See id. The Court based its decision, however, on several factors
not present here. In Spear, the statutory scheme: (1) placed a
heavy burden on an agency that disagreed with the Service's
9
In Spear, the Bureau of Reclamation notified the Service
that an irrigation project it administered might affect two
endangered species of fish. See id. at 158-59. In accordance
with the Endangered Species Act, the Service issued a biological
opinion, concluding that the operation of the project was likely
to jeopardize the species and identifying an alternative method
of operation. See id. at 159. Several petitioners challenged
the opinion, contending that the Bureau would abide by the
restrictions imposed therein and that these restrictions would
substantially reduce the quantity of available irrigation water.
See id. at 167. The Government responded that petitioners
failed to meet the requirements of Article III standing,
particularly the requirement that their injuries be "fairly
traceable" to the Service's opinion. See id. at 168. The
Government contended that petitioners' injuries were traceable
to the Bureau's ultimate implementation of the opinion, not to
the opinion itself. See id. The Court disagreed, holding that
petitioners' injuries were fairly traceable to the opinion based
on its "powerful coercive effect on the [Bureau] . . . ." Id.
at 169.
- 19 -
opinion to articulate its reasons, (2) raised wildlife issues for
review that were beyond the Bureau's sphere of expertise and which
were peculiarly within the Service's expertise and (3) imposed the
risk of civil and criminal penalties upon agencies and their
employees who chose to disregard an opinion's terms.
In this case, although 33 C.F.R. § 320.4 states that the
Corps "will generally . . . issue[]" a permit upon receipt of "a
favorable state determination," the remaining regulatory
provisions make clear that the Corps independently reviews whether
a § 404 permit would comport with the public interest and that
numerous factors must be considered by the Corps before a permit
can issue. Furthermore, we note the absence of any provisions
imposing penalties on the Corps should it elect to deny a § 404
permit after receiving the required state certification and the
relative expertise enjoyed by the Corps in reviewing the relevant
issues to be addressed before a permit may be issued. See 33
U.S.C. § 1344(a),(d) (authorizing the Secretary of the Army,
"acting through the Chief of Engineers," to issue permits for the
discharge of dredged or fill material); 33 C.F.R. § 323.1
(establishing "policies, practices, and procedures to be followed
by the Corps of Engineers in connection with the review of . . .
permits [for] the discharge of dredged or fill material into
waters of the United States . . ."). Further, as expressly
established in 33 C.F.R. § 320.4, the general statement that the
Corps will issue a permit upon receipt of a favorable state
- 20 -
determination applies only "in the absence of overriding national
factors of the public interest that [are] revealed during the
evaluation of the permit application" and only if the "concerns,
policies, goals, and requirements as expressed in 33 C.F.R. Parts
320-24, and the applicable statutes have been considered and
followed." These factors underscore the independent nature of the
Corps' review of permit applications and the absence of a coercive
or determinative effect of a state certification upon the process.
In summary, the construction and operation of the King
William Reservoir project is contingent upon the Corps' issuance
of a § 404 permit for the discharge of fill material into Cohoke
Creek. Under the applicable statutory scheme, the Corps has
exclusive authority to issue such a permit upon finding that the
project and its intended use comply with the guidelines
implementing the policies of the CWA and comport with the public
interest. The Board's issuance of a VWPP does not compel the
Corps to issue a § 404 permit. Thus, we hold that appellants’
alleged injuries are the result of the independent action of the
Corps upon its authorization of the discharge of fill material
into Cohoke Creek pursuant to § 404 of the CWA. As such,
appellants have failed to satisfy the second prong of the test for
standing established in Code § 62.1-44.29.
- 21 -
For the foregoing reasons, we affirm the decision
of the circuit court.
Affirmed.
- 22 -