2011 Annual Report - Virginia Attorney General

xxxii
2011 REPORT OF THE ATTORNEY GENERAL
permit issued by the SWCB to Dominion Power. The permit authorized Dominion to
discharge from its North Anna Nuclear Power Station into Lake Anna. The League
argued, in part, that the permit failed to regulate properly the discharge of thermal
pollution into the facility’s waste heat treatment facility and thus failed to protect
water quality standards in the waste heat treatment facility and in Lake Anna itself.
Although the circuit court set aside the permit, the Court of Appeals of Virginia
reversed the lower court’s ruling. In a published opinion, the Court of Appeals held
that “the SWCB’s decision not to regulate the waste heat treatment facility based on
its determination that it fell under the ‘waste heat treatment system’ exemption was
not arbitrary or capricious constituting an abuse of its delegated discretion, and, thus,
the circuit court erred in not according deference to the SWCB in its construction of
its own regulations and erred further in not permitting the SWCB to defer to the
EPA’s construction of federal regulations.” The Supreme Court of Virginia affirmed
the Court of Appeals’ decision.
The Section also represented the SWCB in an action brought by the Chesapeake
Bay Foundation and the Citizens of Stumpy Lake seeking judicial review of a permit
issued in 2003 pursuant to Virginia Code § 62.1-44.15:5 (2003) and the applicable
SWCB regulation. The permit would allow the construction of a mixed-use
development in the City of Chesapeake adjacent to Stumpy Lake. Appellants argued
that the permittee failed to avoid, mitigate and compensate properly for affected
wetlands and failed to delineate properly the affected wetlands at the site, especially
in light of the U.S. Army Corps of Engineers’ conflicting delineation issued several
years after the SWCB issued the challenged permit. The Circuit Court held that
Chesapeake Bay Foundation and the Citizens of Stumpy Lake failed to meet their
burden of proof in establishing (i) that the SWCB had insufficient evidential support
for its findings of fact or (ii) that the SWCB had violated § 62.1-44.15:5(D) or any
other laws or regulations.
In addition, the Section represented the Virginia Marine Resources Commission
in an appeal of a permit it issued to the City of Virginia Beach to place a concrete
pipe and outfall structure on state-owned bottomland channelward of the mean low
water mark. Twenty-nine residents of Virginia Beach challenged the permit. These
residents live in the vicinity of a proposed upland pump house that will be part of a
stormwater removal system that will connect to the pipe and outfall structure. The
Circuit Court dismissed the case for failure to allege facts sufficient to establish
standing, but the Court of Appeals reversed and remanded for an evidentiary hearing
to determine if the residents had been aggrieved. The Court of Appeals further held
that, because the Rules of the Supreme Court do not expressly require an appellant in
an APA appeal to plead facts sufficient to establish standing, no such requirement
exists. On appeal to the Supreme Court of Virginia, the Commission and the City
argued that despite the Rules’ silence, there are fundamental pleading requirements in
all contested matters. The Supreme Court agreed, reversed the Court of Appeals’
opinion, and entered final judgment in favor of the Commission and the City of
Virginia Beach.
On behalf of the Commonwealth, the Section participated in an EPA/DOJ
stormwater management enforcement case against national homebuilder, The Ryland
Group, Inc. The case, which was filed in the U.S. District Court for the Western
District of North Carolina in October 2011, alleges Clean Water Act violations in