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
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
("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,
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.
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.
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.
* Pursuant to Code 17.1-413, recodifying Code
17-116.010, this opinion is not designated for publication.
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).
