Summary of a Recent
Judicial Development in
Clean Water Act

Wastewater Discharge Permit Issued to County Held
to Be Supported by Substantial Evidence

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Crutchfield v. State Water Control Bd., 612 S.E.2d 249 (Va. Ct. App. 2005), the Virginia Court of Appeals affirmed the trial court's judgment, holding the administrative agency's issuance of a Virginia Pollution Discharge Elimination System (VPDES) permit to county was done in compliance with applicable water control laws and regulations.

Background

The owners of Newcastle Farm owned several miles of land fronting the Pamunkey River located in Hanover County. Id. at 251. The county sought to discharge ten million gallons of treated wastewater into the river, but needed a VPDES permit to comply with the law. Id. The State Water Control Board (SWCB) solicited comments, held a public hearing, and heard evidence from Newcastle's owners and others. Id. Newcastle's owners were concerned about the effect of the additional treated wastewater on the river's already impaired water quality, and particularly about the impact of the proposed discharge on the dissolved oxygen levels. Id. at 251-52. After SWCB granted the permit, Newcastle's owners appealed contending that SWCB regulations required SWCB to first make a determination that the proposed discharge would not cause violations of water quality standards; impair uses of the river; or harm human, plant, or animal life. Id. at 252. Newcastle's owners argued that SWCB failed to make these findings. Id. The trial court found that SWCB issued the permit in compliance with state and federal law. Id. at 253.

Arguments

On appeal, Newcastle's owners contended that the trial court erred by holding that the SWCB did not violate state water control laws or its own regulations when it issued the VPDES permit without demonstrating that the discharge was consistent with a plan that would meet water quality standards for dissolved oxygen levels, and by holding that the VPDES permit was supported by substantial evidence. Id. at 252.

Analysis and Holdings

The court held the trial court's ruling that SWCB's decision to issue the permit in accordance with applicable water control laws and regulations was supported by substantial evidence. Id. at 253. It based its decision on the agency record, several memoranda prepared by the SWCB which supported the established permit limits, and the fact that the SWCB had used the same permit limits for other sewage treatment plants. Id. at 253-54. Additionally, the court stated, "[w]here the issue is whether there is substantial evidence to support findings of fact, great deference is to be accorded the agency decision." Id. at 254 (quoting Johnston-Willis, Ltd. v. Kenley, 369 S.E.2d 1, 9 (1988)).

The case was decided on May 3, 2005.