COURT OF APPEALS OF VIRGINIA
Present: Chief Judge F itzpatrick, Judge Kelsey and Retired Judge Stephens * Argued at Chesapeake, Virginia

THE MATTAPONI I NDIAN TRIBE, CARL T. LONE EAGLE CUSTALOW, ASSISTANT CHIEF v. Record No. 2338-03-1
COMMONWEALTH OF VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, ex rel. STATE WATER CONTROL BOARD, ROBERT G. BURNLEY, DIRECTOR & EXECUTIVE SECRETARY, AND CITY OF NEWPORT NEWS OPINION BY ALLIANCE TO SAVE THE MATTAPONI, JUDGE D. ARTHUR KELSEY CHESAPEAKE BAY FOUNDATION, INC ., AUGUST 31, 2004 MATTAPONI AND PAMUNKEY RI VERS ASSOCIATION, SIERRA CLUB, PAULETTE P. BE RBERICH AND WARREN MOUNTCASTLE v. Record No. 2469-03-1 COMMONWEALTH OF VIRGINIA, DEPARTMENT OF ENVIRONMENTAL QUALITY, ex rel. STATE WATER CONTROL BOARD ROBERT G. BURNLEY, DIRECTOR & EXECUTIVE SECRETARY, AND CITY OF NEWPORT NEWS

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Robert W. Curran, Judge Designate David S. Bailey (Curtis Berkey; Hope M. Babcock; Eric D. Albert; Saikat Chatterjee, Law Student In tern; Charles Been e, Law Student Intern; David S. Baile y, P.L.L.C.; Georgetown University Law Center Institute for Public Represen tation, on briefs ), for appellant The Mattaponi Indian Trib e, Carl T. Lone Eagle Custalow, Assistant Chief.

* Retired Judge J. Warren Stephens took part in the consideration of this case by designation pursuant to Code § 17.1-400.- 2 - Deborah M. Murray (Southern Environmental Law Center, on briefs), for appellants Alliance to Save the Mattaponi, Chesapeake Bay Foundation, Inc., Ma ttaponi and Pamunkey Rivers Association, Sierra Club, Paulette P. Berb erich, and Warren Mountcastle. Rick R. Linker, Assistant Attorney General (Jer ry W. Kilgore, Attorney General; Roger L. Cha ffe, Senior Assistant Attorney General, on briefs), for appe llee Commonwealth of Virginia, Department of Environmental Quality, ex rel. , State Water Control Board, Robert G. Burnley, Dire ctor & Executive Secretary. M. Scott Hart (James E. Ryan, Jr.; George A. Somerville; Stuart E. Katz, City Attorney; Allen L. Ja ckson, Chief Deputy City Attorney; Troutman Sanders LLP, on briefs), for appe llee City of Newport News. Newport News requested and received a permit from the State Water Control Board (SWCB) to go forward with the proposed King William Reservoir, a large-scale water supply project that principally relies on freshwater withdrawals fromthe Mattaponi River. The Mattaponi Indian Tribe and A lliance to Save the Mattaponi, et al. filed separate chancery actions seeking to overturn the permit decision under the Virginia Administrative Process Act (VAPA), Code §§ 2.2-4026, 62.1-44.29. In addition to its VAPA challenge, the Tribe also sought declaratory and injunctive re lief alleging a freestanding cla im under the 1677 Treaty at Middle Plantation. After a successful appeal to the Virginia Supreme Court to establish their standing, Mattaponi Indian Tr ibe v. Commonwealth , 261 Va. 366, 541 S.E.2d 920 (2001), the Tribe and Alliance returned to circuit court to press their claims on the merits. On remand, the circuit court affirmed the SWCB’s permit decision unde r the VAPA and dismissed the non-VAPA treaty claim on the ground that one of the treaty provisions required all trea ty disputes to be resolved by the Governor without access to later judicial review. The Tribe and Alliance again appeal. In response, the Commonwealth moves to dismiss both appeals on sovereign immunity grounds. Rej ecting the sovereign immunity defense, we- 3 - agree that the SWCB’s decisi on should be affirmed under th e VAPA. We express no opinion, however, on the circuit court’s dismissal of the Tribe’s non-VAPA treaty claim. Because our appellate jurisdiction ov er this case extends on ly to the VAPA issues, we transfer the non-VAPA portion of this appeal to the VirginiaSupreme Court pursuant to Code § 8.01-677.1.
I. B ACKGROUND Several localities on Virginia’s Lower Peninsul a have engaged in nearly three decades of study, administrative proceedings, and litigation to solve what th ey believe to be an impending water shortage. The proposed King William Reservoir has itself been the subject of litigation in various judicial forums since 1997 and the obj ect of on-going study for almost two decades. In 1987, three localities (Newport News, Williamsbur g, and York County) 1 created the Regional Raw Water Study Group (the Study Group) to address critical water shortages and to respond to the Virginia Department of Health ’s order to seek out additional water sources. 2 The Study Group retained Malcolm Pirnie, Inc. to prepare a ra w water study plan to estimate water needs over a fifty-year peri od from 1990 through 2040. Projecting a 35 million gallon per day (mgd) deficit by the year 2040, Malcolm Pirnie, Inc. published an initial report evaluati ng thirty-one options to provid e the region with additional raw water supplies. Of those alternatives, ten involved long-term options with sa fe yields of raw water

1 James City County attended the Study Gr oup’s organizational meeting in 1988, but did not join the Study Group until 1990.

2 Local jurisdictions included in the study area included the cities of Newport News, Hampton, Poquoson and Williamsburg and the counties of York and James City. The study area also included several federal facilities includ ing Fort Monroe, Langley AFB, NASA Langley Research Center, Fort Eustis, Yorktown Nava l Weapons Station, Camp Peary, Cheatham Annex, and Yorktown Coast Guard Reserve Training Cent er. Finally, the study area includes at least two state-recognized Indian Rese rvations, the Mattaponi Indian Reservation and the Pamunkey Indian Reservation.- 4 - exceeding 20 mgd. Of those ten, five were later deemed to be “not permittable” based on comments or past action by various state and federal agencies. 3 Of the five remaining long -term options, the Study Group found Lake Gaston to be impracticable based on Virginia Beach’s already protracted legal battle to obtain water from that source. A desalinization plant on the York River was also rejected as economically prohibitive. Three remaining alternatives — reservoirs on Black Creek with a pumpover from the Pamunkey River, Ware Creek with a pump over from the Pamunkey River, and Cohoke Mill Creek (King William Reservoir) with a pumpo ver from the Mattaponi River — were deemed practical. Noting host approval issues and problems associ ated with draining water from the already taxed Pamunkey River, the Study Group turned its focus primarily to the King William Reservoir alternative in conjunctio n with other short-term projects. In 1993, Newport Ne ws, as the lead municipality for the Study Group, applied for a state permit unde r the State Wate r Control Law, Code § 62.1-44.2 et seq. and a federal permit under the Cl ean Water Act, 33 U.S.C. § 1251 et seq

. After conducting public hearings, receiving wri tten recommendations from state and federal agencies, reviewing draft and final environmental impact st atements, and reviewing public comments, including comm ents submitted by the Tribe and Alliance, the SWCB in 1997 issued a Virginia Water Protection Perm it to Newport News pursuant to Code § 62.1-44.15:5. During the administrative pro cess, the Tribe argu ed that the SWCB should interpret and enforce provisions of the 1677 Tr eaty at Middle Plantation. Ente red into shortly after Bacon’s Rebellion, the treaty between the “Dread Soverei gn” King Charles II and the “Kings and Queens” of several Indian tribes sought to establish “a good Peace with the Ne ighbour Indians” and the

3 These alternatives included Lake Genito (not permittable per USFWS, USEPA, USACOE), Lake Anna (not permittable per U SFWS, USEPA), James River between Richmond and Hopewell (not permittable per VDH), groundwat er desalinization as long term option (not permittable per SWCB, USFWS), and James Rive r Desalinization (not permittable per VDH).- 5 - English settlers. One prov ision of the 1677 treaty states that “n o English shall Seat or Plant nearer than Three miles of any Indian Town; and whosoever hath made, or shall make any Incroachment upon their Lands, shall be removed from thence . . . .” Another provision allows “Indians” to hunt, fish, and gather vegetation not “useful to E nglish” on English land provided they obtain a “certificate” from a magistrate. Finally, Article XV III of the treaty includes what appears to be a form of dispute resolution provision: That upon any Discord or Breach of Peace happening to arise between any of the Indians in Amity with the English, upon the first appearance and beginning thereof, and before they enter into any open Acts of Hostility or War one against another, they shall repair to His Majesties Governour , by whose Justice and Wisdom it is concluded such Difference sh all be made up and decided, and to whose final Determination th e said Indians shall submit and conform themselves. The Tribe first presented its trea ty claim to the Virg inia Attorney Genera l seeking a response on behalf of the Commonwea lth as successor to King Charles II. In reply, the Attorney General opined that the relevant portions of the treaty had been abrogate d by implication. The three-mile area around the Mattaponi reserva tion, the Attorney General obse rved, had been developed over many years with more than 150 structures “inc luding numerous homes an d dependent buildings, several churches, a school, and the King and Queen County courthouse.” There were also “some thirteen public highways, ten millponds, several boat landings , many fields under cultivation, cemeteries, a gravel pit, and a landfill situated with in the buffer.” Dete rmining that the 1677 treaty established the three-mile zone as a buffer to prevent violence between the “English” and the “Indians” and that the provi sion had been impliedly abrogate d by large-scale, non-tribal ownership, the Attorney General concluded that th e Tribe had no enforceable legal rights arising out of the treaty that would prec lude the proposed water project.- 6 - Though aware of the Attorney General’s position, the SWCB refused to adjudicate the treaty dispute in the permit action or to enforce any justiciable rights of action allegedly arising out of the treaty. The SWCB, however, did cons ider evidence of the Tribe’s traditions and cultural interests (such as traditional fishing, gathering, reli gious practices, and archeological sites) and took them into account as decisional factors. The SW CB also considered Alliance’s challenge to the project’s impact on wetlands, the effect on salinity levels in the Mattaponi River, and the allegedly overstated need for drinking water supply. Finding the evidentiary record sufficiently complete to make a prudent deci sion, the SWCB issued the permit and attached various conditions to ensure its continuing authority to mitigate any unforeseen environmental harms. Both the Tribe and Alliance filed separate actions in th e Newport News Circuit Court to challenge the SWCB’s decision to issue the permit . Alliance limited its suit to an administrative appeal of the SWCB’s decision under the VAPA. The Tribe filed a VAPA appeal, but also sought declaratory and injunctive re lief asserting separate, non-VAP A claims under the 1677 Treaty, Title VI of the Civil Rights Act of 1964, and the Indian Nonintercourse Acts of 1790 and 1834. The circuit court dismissed both suits, holding that the Tribe and Alliance lacked standing under the VAPA to challenge the SWCB’s decisi on. The circuit court al so held that the non-VAPA claims were “multifarious and imprope rly pled” in a VAPA proceeding. On appeal to us, the Tribe and Alliance challe nged both rulings of the circuit co urt. We affirmed the circuit court’s decision on standing under the VAPA. Mattaponi Indian Tribe v. Commonwealth , 31 Va. App. 472, 524 S.E.2d 167 (2000); Alliance to Save the Mattaponi v. Commonwealth , 30 Va. App. 690, 519 S.E.2d 413 (1999). Because our d ecision on standing disposed of the cases, we offered no advisory opinion on the ci rcuit court’s multifariousness holding. See Mattaponi Indian Tribe , 31 Va. App. at 479 n.3, 524 S.E.2d at 171 n.3.- 7 - The Tribe and Alliance appealed to the Virgin ia Supreme Court, challenging the circuit court’s standing decision (which we affirmed) but not its multifariousness holding (which we did not address). The Supreme Court consolidated the appeals, reversed our standing decision, and ordered the cases “remanded to the circuit cour t for trial upon the merits of the protesters’ claims.” Mattaponi Indian Tribe , 261 Va. at 378, 541 S.E.2d at 926. On remand, the Tribe moved for leave to file a “First Amended Petition for Appeal” on the ground that “some of the claims it originally raised should be narrowed and clarified.” The Amended Petition deleted the claim under the In dian Nonintercourse Acts of 1790 and 1834, but retained the remaining two non- VAPA claims. The Tribe’s Am ended Petition asserted four separate counts. The first alleged that the 1677 Tr eaty authorized a “bill in eq uity” to protect the Tribe’s right of exclusion from the three- mile anti-encroachment zone. See Amended Petition ¶ 35. The circuit court had authority to adjudicate this claim, the Tribe asserted, under the “general jurisdiction” of a trial court. Id. ¶ 21. Joining Newport News as a party along with the Commonwealth respondents, the Trib e requested declaratory and inj unctive relief to void the permit and to enjoin the Commonwealth “from further violations” of the treaty. Id. ¶ 6 (prayer for relief). The second challenged the SWCB permit as viol ative of the State Water Control Law. Contending the SWCB failed to prot ect the Tribe’s treaty rights, cu ltural interests, and use of state waters, the Tribe asserted that the admi nistrative permit decision should be overturned by the circuit court under the VAPA. The third also sought VAPA review, conte nding that the permit decision violated administrative regulations issued under the St ate Water Control Law, 9 Va. Admin. Code §§ 25-210-80(A), 25-210-120(A).- 8 - The fourth asserted a non-VAPA claim under Title VI of the Civil Rights Act of 1964, alleging that the SWCB discriminated against th e “Tribe’s needs and values” by overlooking the project’s “devastating cost to tribal culture and resources, and the future survival of the Tribe itself.” See Amended Petition ¶¶ 73, 76. The Tribe also sought an award of prevaili ng party attorney’s f ees under Code § 2.2-4030 for its VAPA appeal and under 42 U.S.C. § 1988 for its non-VAPA claims under the treaty and Title VI of the Civil Rights Act of 1964. Id. ¶ 7 (prayer for relief). The Commonwealth and Newport News obj ected to the motion for leave to amend, relying on their earlier successful assertion that principles of multifariousness forbid the joinder of VAPA and non-VAPA claims in a single ch ancery action. Though no appellate court had addressed the issue of multifari ousness, the circuit court revers ed its earlier position, overruled the objection to joinder, and gr anted the Tribe leave to amend. After ruling on the multifarious ness issue, the circuit court entered a pretrial scheduling order. Because VAPA appeals in circuit court mu st proceed entirely on th e administrative record,

seeCode § 2.2-4027, the court ordere d the SWCB to file the record an d all parties to submit briefs. The VAPA appeals, the order provided, “shall be resolved upon cross motion for summary judgment based on the administrativ e record.” The scheduling order also set a tria l date for all “issues not arising under the VAP A” and established pretrial cutoffs for discovery, expert disclosures, exhibit an d witness lists, motions in limine , witness subpoenas, and the like. Throughout the circuit court pr oceedings, the judge an d the litigants understo od that the case rested on two separate jurisdiction al grounds: the VAPA grant of appe llate jurisdictionin the circuit- 9 - court to review the SWCB’s permit decision, and the circuit court’s ge neral chancery ju risdiction to adjudicate the Tribe’s assertion of non- VAPA treaty and statutory rights of action. 4 Prior to trial, the Commonwealth and Ne wport News filed demurrers and summary judgment motions seeking dismissal of all claims asserted by the Tribe and Alliance. The Tribe and Alliance asserted cross-motions for summar y judgment. In response, the circuit court dismissed both cases. The court rejected the Tribe’s non-VAPA claim seeking declaratory and injunctive relief based upon the 1677 treaty on the ground that Artic le XVIII required all treaty disputes to be submitted to the Governor for fi nal and binding resolution. No further judicial review, the court held, could be obtained. Re jecting the Tribe’s argument that federal law

4 See , e.g. , Tribe’s Memorandum in Opposition to Motion to Strike, at 6 (Jun. 17, 2002) (noting that the “[t]reaty cl aims are free standing”); id. at 9 (arguing that the treaty and Title VI claims are not restricted to VAPA); Circui t Court Order (Jul. 9, 2002) (overruling objection based on multifariousness); Circuit Court Sche duling Order (Jan. 21, 2003) (“This case involves both an appeal from a case decision by an administrative agency pursuant to the [VAPA] . . . and a suit in equity to enforce a treaty . . . .”); Le tter from Newport News Counsel to Court (Nov. 26, 2002) (“This letter, as you requested, confirms th at the parties, by agreement, have continued the trial on the non-VAPA issues . . . .”); Letter from Newport News Counsel to Court (Dec. 4, 2002) (confirming that “we have set the trial of the non-VAPA issues”); Tribe’s Memorandum in Opposition to Motion in Limine, at 3 (Dec. 18, 2002) (arguing that the Tribe is offering expert testimony only in support of the “separate Treaty claim in this matter” and that VAPA’s judicial review provisions do not apply to “issues separately subject to de novo review, such as the Tribe’s Treaty violation claim”); Tribe’s Me morandum in Opposition to Demurrers & Motions for Summary Judgment, at 1 (Dec. 18, 2002) (“The Tribe’s First Assigned Error alleges violations of the Treaty at Middle Plantation, for which the Tribe has a common law cause of action that this Court may hear as a court of general jurisdiction.”); id. at 6 (contending that the Tribe has a freestanding, just iciable treaty claim); id. at 8 (contending that the Treaty is actionable under both federal and state comm on law); Appellees’ Response in Support of Demurrers and Motions for Summary Judgment, at 33, 34 (Jan. 15, 2003) (arguing that the Tribe has no common law right to enforce the treaty but, alternatively, the Tribe’s non-VAPA treaty claims are barred by sovereign immunity); Appellees’ Supplemental Memorandum (Feb. 19, 2003) (responding to court’s questi on by stating that, properly cons trued, the treaty would have granted the tribe no recourse for judicial review of governor’s decision in the colonial era); Tribe’s Reply Letter (Feb. 25, 2003) (arguing the court can “hear the Tr ibe’s federal common law claims based on aboriginal title because state courts are courts of general jurisdiction” and the treaty, itself, “contains an implied right of action”); Final Order of Circuit Court (Aug. 26, 2003) (finding that all claims arisi ng out of the treaty “arise under Virginia law,” not federal law, and holding that the court has no “jurisdic tion to review gubernatorial decisions”).- 10 - governed, the circuit court applied Virginia law and concluded it did “not have jurisdiction to review gubernatorial decisions co ncerning the 1677 Treaty at Middle Plantation.” The court also dismissed the remaining non-VAPA claim arising out of Title VI of the Civil Rights Act. Reviewing the SWCB’s decision under the VAPA, the circuit court held that the SWCB complied with the governing legal standards for issuing the permit and rested its decision on a showing of substantial evidence. The circuit court’s final decr ees ordered both cases “stricken from the Court’s docket and placed among the ended causes.” The Tribe and Alliance filed separate appeals to us. Both continue to challenge the SWCB’s permit decision under the VAPA. The Tribe also appeals the dismissal of its freestanding treaty claim, but has abandoned its claims under the State Water Control Law regulations (Count 3) and Title VI of the Civi l Rights Act of 1964 (Count 4). We consolidated these appeals for oral argument and decision, finding the argument s interrelated and substantially similar.
II. C OMMONWEALTH ’ S S OVEREIGN I MMUNITY While the cases were on appeal to us, the Commonwealth filed a motion to dismiss both appeals on sovereign immunity grounds. Conced ing that it had not raised this particular argument in the circuit court or the earlier appeals of these case s (despite having raised a very similar sovereign immunity objectio n which we previously rejected), 5 the Commonwealth contends the issue cannot be waived because it implicates subject-matter jurisdiction. We address this issue first to determine whether we have authority to resolve the merits of the appeal.

5 Alliance to Save the Mattaponi , 30 Va. App. at 697-702, 519 S.E.2d at 415-18.- 11 - The Commonwealth acknowledges that Code § 62.1-44.29 expressly waives sovereign immunity for purposes of providing judicial review of SWCB decisions to issue or deny permits under Code § 62.1-44.15:5. See Mattaponi Indian Tribe , 261 Va. at 374 n.*, 541 S.E.2d at 923 n.*. Even so, the Commonwealth argues, that same statute also requires that such review be performed “in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).” And among the various ex emptions in the VAPA is Code § 2.2-4002(B)(3). It provides: Agency action relating to the follo wing subjects shall be exempted from the provisions of this chapter: * * * * * * * The location, design, specifications or construction of public buildings or other facilities. Because the proposed reservoir “ undeniably is a public facility ,” the Commonwealth argues, the exemption precludes any judicial review of the SWCB’s decision to issue a permit authorizing its construction. Given the absence of any other stat utory provision authorizi ng judicial review, the Commonwealth contends its sovereign immunity remains intact. The Commonwealth’s argument misses entirely the point of the exemption, the Tribe and Alliance respond. As they see it, the exemption merely carves out of the VAPA any appellate review of contract disputes ar ising out of state cons truction projects and thereby preserves the unique statutory remedies governi ng bid protests and state constr uction contract disputes. See Virginia Public Procurement Act, Code §§ 2.2-4357 to 2.2-4366; see , e.g. , Allstar Towing, Inc. v. City of Alexandria , 231 Va. 421, 423-24, 344 S.E.2d 903, 905 (1986). Under this view, the exemption applies to first-party s ituations (like a state agency c ontracting for the construction of an office building), but not to third-party situations (like a state agency issuing a permit authorizing others to build their own office buildings).- 12 - Both sides of this debate claim their competing interpretations capture the plain meaning of the statutory words and that any other interpretation does violen ce to the literal text of the

statute

⎯ an understandable standoff given the “textu alist approach” to statutory interpretation uniformly embraced by Virginia courts. See Cent. Va. Obstetrics & Gynecology Assocs. v. Whitfield , 42 Va. App. 264, 276, 590 S.E.2d 631, 638 (2004). To us, however, the plain meaning of this particular statute is not so pl ain. Its literal text ar guably embraces both opposing interpretations. In cases like this, we look fo r guidance in the next le vel of construction: statutory context. In legal codes, as in ordinary conversa tion, “a word is known by the company it keeps.” Sprietsma v. Mercury Marine , 537 U.S. 51, 63 (2002) (quoting Gustafson v. Alloyd, Co. , 513 U.S. 561, 575 (1995)). The same can be said of a statutory phrase. Stat utory provisions “which have the same general or common purpose or ar e parts of the same general plan are also ordinarily considered as in pari materia .” Finnerty v. Thorton Hall, Inc. , 42 Va. App. 628, 635-36, 593 S.E.2d 568, 572 (2004) (quoting Lucy v. County of Albemarle , 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999)). As a result, we cons ider “the entire body of legislation and the statutory scheme to determine the ‘true intention of each part.’” Id. at 636, 593 S.E.2d at 572 (citation omitted). And “when a controversy involv es a number of related statutes,” we construe them “together in order to give full mean ing, force, and effect to each.” Id. (quoting Ainslie v.
Inman , 265 Va. 347, 353, 577 S.E.2d 246, 249 (2003)). Aided by these principles, we find the interp retation advocated by the Tribe and Alliance best advances the legislative intent reflected in these statutes. It makes no sense to us for the legislature to expressly author ize judicial review of SWCB pe rmit decisions under the VAPA in Code § 62.1-44.29, only to find out that the VAPA imp licitly exempts them fr om judicial review under Code § 2.2-4003(B)(3). The Commonwealth argues that, under its interpretation, this- 13 - statutory double-reverse can be explained by the observation that the VAPA exemption would still allow judicial review of SWCB permits for private facilities. We find nothing in the statut ory framework, however, sugges ting the legislature intended such a counterintuitive dis tinction: authorizing j udicial review of minor private projects (like a 10 foot pier on a waterfront re sidence), while withholding judi cial review of major public projects (like a multi-million dollar reservoir). For these reasons, we hold that Code § 62.1-44.29 expressly waives sovereign immunity for judicial review of SWCB permit decisions under the VAPA. 6 The VAPA exemption in Code § 2.2-4003(B)(3) does not apply to SWCB permit decisions because that exemption se rves only to preserve the unique judicial review procedures applicable to gov ernment bid and contract disputes. 7
III. T HE A PPELLATE S TANDARD O F R EVIEW Under the VAPA, “the duty of th e court with respect to issues of fact shall be limited to ascertaining whether ther e was substantial eviden ce in the agency record upon which the agency as the trier of the facts could reasonably find them to be as it did.” Code § 2.2-4027; see Vasaio
v. DMV , 42 Va. App. 190, 196, 590 S.E.2d 596, 599 (2004). We have authority to “reject the

6 Prior to the 2000 amendment to Code § 62.1- 44.29, we had interprete d that statute to implicitly waive sovereign immunity and to author ize judicial review of permit decisions by the SWCB. Alliance to Save the Mattaponi , 30 Va. App. at 696-701, 519 S.E.2d at 415-18. While our decision was on appeal to the Virginia S upreme Court, the General Assembly erased any doubt about its legislative intent by amending § 62.1-44.29 to expressl y provide for such review. See Mattaponi Indian Tribe , 261 Va. at 374 n.1, 541 S.E.2d at 923 n.1 (“As amended in 2000, the statute now contains an express waiver of su ch immunity from suit against the Board arising from issuance of such a permit, as the result of insertion of ‘62.1- 44.15:5’ in the first sentence of § 62.1-44.29.”). Unless we dismiss the timing of this amendment as a mere coincidence, the legislative change to Code § 62.1-44.29 confirms our understanding of the interplay between that statute and Code § 2.2-4003(B)(3).

7 Both our holding and its ratio decidendi apply only to VAPA juri sdiction to review the SWCB’s permit decision. We express no opini on on the question whether sovereign immunity bars the Tribe’s freestanding non-VAPA claims under the 1677 treaty. See post at IV.- 14 - agency’s findings of fact ‘only if, consideri ng the record as a whole, a reasonable mind would necessarily come to a different conclusion.’” Va . Imps., Ltd. v. Kirin Brewery of Am., LLC , 41 Va. App. 806, 819, 589 S.E.2d 470, 476 (2003) (quo ting Va. Real Esta te Comm’n v. Bias , 226 Va. 264, 269, 308 S.E.2d 123, 125 (1983)) (emphasis in original). In exercising this review, “we cannot seize upon questions, comments or incidences of an orderly administrative process to discredit agency action that is supported by the record, viewed in context and as a whole.” Envtl. Def. Fund v. State Water Control Bd. , 15 Va. App. 271, 279, 422 S.E.2d 608, 613 (1992). We focus instead on the de cision itself and the entire factual record considered by the agency. Id. By design, this standard gives “g reat stability and finality to the fact-findings of an administrative agency.” Va. Real Estate Comm’n , 226 Va. at 269, 308 S.E.2d at 125 (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)). It also ensures that we remain faithful to our statutory duty to “tak e due account of the presumption of official regularity” as well as the ag ency’s “experience an d specialized competence.” Code § 2.2-4027. Though we defer to an agency’s factual determin ations, we afford no such deference to its legal interpretations of statutes. See 7-Eleven, Inc. v. De p’t of Envtl. Quality , 42 Va. App. 65, 73, 590 S.E.2d 84, 88 (2003) ( en banc ) (“The reviewing court may set the ag ency action aside, even if it is supported by substantial evidence, if the court’s review discloses that the agency failed to comply with a substantive statutory directive.”). We have long held that “pure statutory interpretation is the prerogative of the judiciary,” and thus, Virginia courts “do not delegate that task to executive agencies.” Finnerty , 42 Va. App. at 634 , 635, 593 S.E.2d at 571 (citations omitte d). As a result, statutory interpretation “presents a pure question of law subject to de novo review” on appeal. Horner v. Dep’t. of Mental Health , 268 Va. 187, 192, 597 S. E.2d 202, 204 (2004).- 15 - IV. T HE T RIBE ’ S C LAIM U NDER THE 1677 T REATY The Tribe asserted its rights under the 1677 Treaty at Middle Plantation in two distinct ways. The Tribe raised the treaty claim before the SWCB, which refused to adjudicate it but nonetheless considered analogous cultural interests of the Tribe as decisionmaking factors. The Tribe appealed the SWCB’s decision to the circ uit court under the VAPA. In addition, the Tribe asserted in circuit court a fr eestanding non-VAPA claim based upon the treaty. The Tribe argued that federal law governed this claim and that it wa rranted both declaratory and injunctive relief. We begin by addressing the VAPA appeal. U nder the VAPA, the circuit court reviews the agency’s action in a manner “equi valent to an appellate court’s ro le in an appeal from a trial
court.” J. P. v. Carter , 24 Va. App. 707, 721, 485 S.E.2d 162, 169 (1997) (quoting Sch. Bd. v. Nicely , 12 Va. App. 1051, 1061-62, 408 S.E.2d 545, 551 (1991)) (internal quotation marks omitted). “In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal.” Gordon v. Allen , 24 Va. App. 272, 277, 482 S.E.2d 66, 68 (1997) (citation omitted); Pence Holdings, Inc. v. Auto Ctr., Inc. , 19 Va. App. 703, 708, 454 S.E.2d 732, 734-35 (1995). Jurisdiction under the VAPA does not extend to any matter “subject by law to a trial de novo in any court.” Code § 2.2-4025(A). Thus, the Tribe’s freestanding treaty claim — a matter “subject by law to a trial de novo” — must have some jurisdictional s upport other than the VAPA. In other words, the circ uit court’s derivative appellate jurisdiction goes no further than the SWCB’s original jurisdiction. If the SWCB had no authority to adjudicate the Tribe’s treaty claims in the context of an administrative perm it proceeding, neither did the circuit court in the context of VAPA appellate review. The SWCB is not a court, but an administra tive board with a statutorily defined mission.
See Carpenter v. Va. Real Estate Bd. , 20 Va. App. 100, 106, 455 S.E.2d 287, 289 (1995)- 16 - (recognizing that an administrativ e agency “is a creature of st atute and derives its power only from its authorizing legislation” ). Its members are not administrative law judges, but citizens without any required legal training. See Code § 62.1-44.9. When deciding to issue or deny a water protection permit, the SWCB may conduct a “publ ic meeting or hearing” or dispense with either. See Code § 62.1-44.15:5(D). The proceeding more resembles an “informal fact finding” under Code § 2.2-4019 than anything akin to a trial. The SWCB had authority only to issue or to deny the permit. 8 The SWCB’s decision does not and, by law, cannot affect private rights of action betw een competing litigants. See Code § 62.1-44.22; 9 Va. Admi n. Code § 25-210-70(B); cf. Zappulla v. Crown , 239 Va. 566, 571, 391 S.E.2d 65, 68 (1990) (finding that issuance of Virginia Marine Resources permit “does not amount to an adjudication of conflicting privat e property claims”). It follows that the SWCB had no power to adjudicate the Tribe’s assertion of legal rights of action arising out of the 1677 treaty. Neither did the circuit court in its capacity as an appellate tribunal. This conclusion, however, does not end the an alysis. Relying on the circuit court’s “general jurisdiction,” the Tribe also assert ed a freestanding, non-VAP A treaty claim based on federal law. The remedy sought was declaratory and injunctive re lief. Federal rights of action, the Tribe pointed out, can properly be asserted in state court under the do ctrine of concurrent jurisdiction. See generally Nevada v. Hicks , 533 U.S. 353, 366 (2001) (recognizing that under our “system of dual sovereignty” state courts ha ve jurisdiction to adjudicate federal claims);

8 Under 33 U.S.C. § 1341(a)(1), an “applicant for a Federal license or permit to conduct any activity . . . which may result in any discha rge into the navigable waters, shall provide the . . . agency a certification for the State in whic h the discharge originates . . . that any such discharge will comply with the applic able provisions” of the CWA. See , e.g. , Int’l Paper Co. v. Ouellette , 479 U.S. 481, 490 (1987) (obs erving that federal agency must “obtain certification from the source State that the proposed discharg e complies with the State’s technology-based standards and water-quality-bas ed standards”). The SWCB permit serves as a § 401 CWA certification. See Code § 62.1-44.15:5(A).- 17 - Oneida Indian Nation v. County of Oneida , 414 U.S. 661, 667 (1974) (recognizing a federal common law action for claims of “Indi an title” or “abor iginal title”). The circuit court exercised its general ju risdiction by refusing to dismiss the non-VAPA claims as multifarious and by scheduling an evidentiary trial on the merits to decide them. In its final judgment, the court rejected the Tribe’s a ssertion that federal law governed the treaty and interpreted Article XVIII to vest exclusive power in the Governor to resolve all disputes arising out of the treaty. In essence, the court treated this provision as a kind of 17th century
forum-selection clause

⎯ one so exclusive as to preclud e any further judicial review.
Cf. County of Oneida v. Oneida Indian Nation , 470 U.S. 226, 249, nn.23 & 24 (1985). In making this decision, however, the circuit court was not saying it had no subject matter jurisdiction to adjudicate the treaty claim. The court’s decision necessarily implied an actual adjudication , for it expressly ruled on the applicable choice of la w, interpreted a disputed provision of the treaty, and then dismi ssed the Tribe’s claim on this basis. Given the segmentation of our appellate au thority, however, we cannot resolve the Tribe’s challenge to the circuit court’s dismissa l of the non-VAPA, freestandi ng treaty claim. By statute, our jurisdiction extends only to specific subject matters. See Code § 17.1-405. It includes jurisdiction over a “final decision of a circuit court on appe al from . . . a decision of an administrative agency” and some types of interl ocutory orders within such a case. Code § 17.1-405(1) & (4); see also Code § 62.1-44.30. But it does not include appellate jurisdiction over chancery suits generally or a ny other type of civil suit ou tside the boundaries of Code § 17.1-405. Nor has any Virginia case recognized any form of ancillary jurisdiction beyond these statutory limits. As a result, the Virginia Supreme Court alone has appellate jurisdiction to- 18 - review the Tribe’s non-VAPA, freestanding claim unde r the 1677 treaty. We thus transfer this portion of the Tribe’s appeal to the Virginia Supreme C ourt pursuant to Code § 8.01-677.1. 9
V. T HE VAPA A PPEALS O F T HE SWCB’ S D ECISION Within the context of our VAPA jurisdiction, both the Tribe and Alliance contend that the SWCB both misunderstood and mi sapplied the statutory standa rd governing its permitting discretion. Like the circuit court, we find no fault in the SWCB ’s understanding of the governing legal standard or its application of it to this case. The 1997 version of the State Water Control La w authorized the SWCB to issue a permit if it determined that “the proposed project ‘is consistent with th e provisions of the [federal Act] and will protect instream beneficial uses.’” Mattaponi Indian Tribe , 261 Va. at 377, 541 S.E.2d at 925-26 (quoting Code § 62.1-44.15:5(B)). “Instr eam beneficial uses include, but are not limited to, the protection of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation, and cultural and aes thetic values.” Code § 62.1-10(b). 10 The statute also requires the SWCB, before issuing a permit, to consult with other state agencies to determine “the need for balancing instream uses with o ffstream uses.” Code § 62.1-44.15:5(F). In this

9 Code § 8.01-677.1 authorizes the transfer of an entire appeal or a discrete “portion of the appeal” outside our appellate jurisdiction. See , e.g. , Davis v. Commonwealth , 35 Va. App. 533, 544 n.1, 546 S.E.2d 252, 253 n.1 (2001); Giles v. Commonwealth , 32 Va. App. 519, 525 n.1, 529 S.E.2d 327, 328 n.1 (2000); Thomas v. Commonwealth , 24 Va. App. 49, 56, 480 S.E.2d 135, 138 (1997) ( en banc ); Claxton v. City of Lynchburg , 15 Va. App. 152, 156 n.1, 421 S.E.2d 891, 892 n.1 (1992).

10 This definition of instream beneficial uses appears in chapter 2 of Title 62.1, entitled “State Policy As To Waters.” This restat ement of the Commonwealth’s overarching water policy should be taken into account when interp reting the State Water Control Law in chapter 3.1 of that same Title. As noted earlier, statutor y provisions “which have the same general or common purpose or are parts of the same genera l plan are also ordinarily considered as in pari materia .” Finnerty , 42 Va. App. at 635-36, 593 S.E.2d at 572 (citation omitted).- 19 - balancing, “[d]omestic and other ex isting beneficial uses shall be considered the highest priority uses.” Code § 62.1-44.15:5(C). Because the SWCB must also ac t consistently with its enabling legislation, we also look to those statutory provisions to discern the overarching policy judgments made by the legislature. Code § 62.1-44.36 authorizes the SWCB to formulat e water resources poli cy and lists several specific legislative directives. One of these directives speaks to the issue of conflicting water

uses: Adequate and safe supplies should be preserved and protected for human consumption, while conserving maximum supplies for other beneficial uses. When proposed uses of water are in mutually exclusive conflict or when available supplies of water are insufficient for all who desire to use them, preference shall be given to human consumption purposes over all other uses[.] Code § 62.1-44.36(2). Also relevant to understa nding the General Assembly’s intent is the “State Policy As To Waters” which defines “ben eficial use” and further states: “Public water supply uses for human consumption shall be co nsidered the highest priority.” Code § 62.1-10(b); cf. Code § 62.1-11(C). These statutory policy directiv es parallel the traditional vi ew of the courts. “Drinking and other domestic purposes are the highest uses of water. An ample supply of wholesome water is essential.” Connecticut v. Massachusetts , 282 U.S. 660, 673 (1931). “A city has the right and the duty to protect its water supply and ‘[i]t is settled policy of the Stat e and of all States to encourage any reasonable exercise of this right and power.’” Tidewater Ass’n of Homebuilders, Inc. v. Virginia Beach , 241 Va. 114, 118, 400 S.E.2d 523, 525 (1991) (quoting Bd. of Supervisors v. Norfolk , 153 Va. 768, 775, 151 S.E. 143, 145 (1930)). The Tribe and Alliance find none of these prov isions particularly helpful, on the ground that balancing present uses with proposed uses necessarily implies that the former will have to- 20 - suffer to some extent to accommodate the latter. That result could not possibly be contemplated, the Tribe contends, because Code § 62.1-44.15:5(B)’s directive to “protect” existing instream beneficial uses renders intolerable any negative impacts on them. But if that were true, permits would almost never be issued. These permits, after all, specifically authorize the alteration of “the physical, chemical or biological properties of state waters” and, when requested, “excavation in a wetla nd.” Code § 62.1-44.15( 5)(b) & (c); see also Code § 62.1-44.15:5(D)(i-iv). To some extent, some measurable negative impact on existing beneficial uses will likely occur in every case where a permit is sought to create a future beneficial use. This strikes us as a matter of common sense, hardly something we should deconstruct with the tools of statutory construction. We thus reject the absolutist no-harm interpretation of the statutory mandate to “protect” instream beneficial uses. In the context of th e State Water Control Law, the mandate requires the SWCB to exercise prudence and good judgment inbalancing existing a nd proposed beneficial uses and to minimize, where reas onable, conflict between the two. Existing instream beneficial uses must be protected, to be sure, but the scope of that protection and the risk tolerance that necessarily accompanies it are matte rs within the SWCB’s speciali zed competency. If exercised reasonably, the SWCB’s discretion shoul d not be undermined by the courts. Satisfied that the SWCB correctly understood the legal standard fo r issuing the permit, we next turn to the question whether substant ial evidence supports th e SWCB’s decision. The Tribe and Alliance challenge the permit on severa l factual fronts. The Tribe argues that the SWCB failed to protect the Tribe’s “cultural values in its traditional fishing, gathering, and religious practices” and likewise failed to protect tribal archeological sites. Alliance focuses instead on the project’s impact on wetlands, the effect on salinity levels in the Mattaponi River, and the allegedly overstated needfor drinking water supply.- 21 - Under the VAPA, in determining “whether subs tantial evidence in th e record supports the decisions of the [agency] and trial court, we re view the evidence and reasonable inferences it raises in the light most favorable to the prev ailing party below.” Groome Transp., Inc. v. Va.
DMV , 27 Va. App. 682, 693, 500 S.E.2d 852, 857 (1998). “The burden of proof rests upon the party challenging an agency decision to show th at the record lacks substantial evidence to support the decision.” Cons olidation Coal Co. v. DMME , 33 Va. App. 784, 788, 537 S.E.2d 15, 17 (2000); see also Smith v. Dep’t. of Mines, Minerals & Energy , 28 Va. App. 677, 685, 508 S.E.2d 342, 346 (1998); Code § 2.2-4027 (providing th at the “burden shall be upon the party complaining of agency action”). Applying these principles, we find that the Tribe and Alliance cannot demonstrate the SWCB’s decision to be f actually insupportable or in any way arbitrary and capricious. (a) The Tribe’s Cultural Interests As Instream Beneficial Uses The Tribe has a rich history of shad fishing in the Mattaponi River. The Tribe describes this tradition as a core aspect of its unique identity as a people, providing a sacred link with tribal ancestors and cultural origins. Despite the signi ficance of this issue, however, the Tribe points us to no specific evidence in the administrative record demonstrating that the project would in fact harm this tradition. Summarizing the evidence for the SWCB, th e Department of Environmental Quality (DEQ) reported that the project w ould not in any way restrict the Tribe’s fishing practices. The SWCB accepted this view, but nonetheless im posed permit conditions restricting water withdrawals during shad spawning periods, requiring the placement of the water intake structures away from fish beds, and mandating the use of screen s to impede the flow of fish into the pipes. The DEQ also advised the SWCB that the intr icate conditions limiting the frequency, amount,- 22 - and times of the withdrawals would protect agai nst any harmful changes in salinity levels, a matter we address in more detail later. Post at V(c). The Tribe also argued that for centuries it ha s gathered “plants and herbs in and along the river and creek for both food and traditional medici nes.” Here again, however, the Tribe offered no specific evidence showing how the project would detrimentally alter these practices. The only mention of gathering practices appears to be a brief reference in a letter to the Army Corps. Yet nothing in this proffer demonstrated when a nd where these gathering practices take place or exactly how these practices would suffer. Similarly, the Tribe described its religious ceremonies on the banks of the Mattaponi River and expressed its reverence for the river as a divine gift of life. But the administrative r ecord reveals little, if any, evidence of exactly how the project would interfere with the conduc t of the Tribe’s sacred ritu als or religious ceremonies. Both before the SWCB and on appeal, the Tr ibe relies on generali zations lacking any specific factual foundation. Considerably more is required for the courts to overturn the considered judgment of an administrative agency. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Ress. Def. Council , 435 U.S. 519, 553 (1978) (recognizi ng that a protestor’s comments “must be significant enough to step over a threshold requirement of materiality before any lack of agency response or considera tion becomes of concern” becaus e the complaint “cannot merely state that a particular mistake was made” but al so must state “why the mistake was of possible significance in the results” (citations omitted)). While the Tribe’s concerns cross the threshold of materiality, they fall far short of demonstrating that “the reco rd lacks substantial evidence to support the decision.” C onsolidation Coal Co. , 33 Va. App. at 788, 537 S.E.2d at 17. Given the record before us, therefore, we cannot say the SWCB neglected to consider the Tribe’s cultural interests or failed to protect any such specific “instream beneficial uses” shown to exist.- 23 - (b) Archeological Sites Within The Proposed Reservoir Area During the planning stages of the project, surv eyors discovered for the first time various Indian archeological sites on priv ate, non-tribal property within th e general area of the proposed reservoir. In response, Newport News scaled back the size of th e reservoir to limit the number of sites affected. For those sites that would be inundated by the reservoir, Newport News proposed a mitigation plan that would excavate each site and preserve any archeologically significant artifacts. The Tribe found this mitigation plan unsatisfactory. The SWCB concluded that it had no authority to make judgments on the historical or cultural value of these sites because they could no t be considered “instream beneficial uses” of the state’s waterways under Code § 62.1-44.15:5(B) . Other laws and other agencies, the SWCB observed, are assigned the task of resolving this dispute. We agree. The National Historic Preservation Act, 16 U.S.C. § 470f, requires the Army Corps to consider the impact of any project seeking a CWA permit on sites eligible for inclusion in the National Register. Code § 10.1-2200 et seq. gives the Virginia Department of Hist oric Resources a similar voice in the federal permitting process. Both agencies have engaged the issue as part of the CWA permit process, of which the state water permit is but a part. In contrast, the SWCB’s d ecisionmaking focus is on the use of state waters. See Code § 62.1-44.15. The archeological sites cannot be fairly characterized as a use of any river, stream, or brook. That is, the sites are no t in any real sense of the word using state waters. As the DEQ correctly advised the SWCB: The decision to issue a permit does not indicate compliance with Section 106 of the Historic Resour ces Preservation Act and is not relevant to the preservation, catal oging and recovery of prehistoric Indian artifacts. This is the re sponsibility of the State Department of Historic Resources and th e Army Corps of Engineers.- 24 - It may very well be that the impact of the proj ect on these archeological sites causes the project to fall short of obtaining a CWA permit. But that decision belongs to agencies other than the SWCB and, if challenged in litig ation, will be scrutinized in judi cial proceedings other than the present one. (c) Detrimental Salinity Changes In The Mattaponi River The Tribe and Alliance challenge the SWCB’s conclusion that the project’s freshwater withdrawals will not threaten fish or plant life by raising the salinity level of the Mattaponi River. We find substantial evidence in the administrative record supporting the SWCB’s decision on this issue. Studies relied upon by the SWCB concluded that “[n]atural Matt aponi River salinity fluctuations greatly exceed any salinity ch anges that are predicted due to the proposed withdrawals.” Modeling performed by the Virg inia Institute of Marine Science (VIMS) bolstered this finding. The propos ed freshwater withdrawals, VIMS opined, “would not affect the upstream limits of detectable salinity intrusion.” Though test s of the areas downstream from the intake valves indicated that the withdrawals would “cause sma ll increases in the frequency of given levels of salinity intrusi on,” VIMS found that these areas “al ready are periodically exposed to comparable salinity levels.” 11
VIMS also examined whether the estimated sa linity changes would harm plant life in the Mattaponi River. Focusing on three unique trans ects of the river, VIMS concluded that the “salinity increased minimally at eac h transect when compared with the historical salinity record

11 Another study looked at the impact of the salinity changes on anadromous fish species such as the American shad, hickory shad, alewif e, and blueback herring, all indigenous to the Mattaponi River. This study found no direct risk to adult fish, but potentia l risk to fish larvae and eggs that were not as resi lient to salinity chan ges. Conditions limiting the time, amount, and methods of freshwater withdr awals, the study observed, w ould dissipate this risk.- 25 - over the same period” and determined that “littl e or no impact to wetland plant distributions are anticipated as a result of salinity change caused by proposed freshwater withdrawal levels.” VIMS also found that the proj ected miniscule salinity increa ses would pose no measurable impact to the sensitive joint vetch, a threat ened plant under the Endangered Species Act. During the permit application process, the Trib e and Alliance criticized VIMS for using a one-dimensional simulation method instead of multi-dimensional modeling that considers a host of additional factors. In response to this cr iticism, DEQ consulted the Waterways Experiment Station (WES) of the Army Corps. WES f ound that the VIMS modeling approach provided reliable data, but that an additi onal “cumulative effects” scenario should be utilized to account for the combined projected withdrawals from th e Pamunkey River in addition to the Mattaponi. DEQ accepted this recommendation and retained Malc olm Pirnie, Inc. to perform an additional cumulative analysis. The results from this s upplemental study confirme d that any changes to salinity levels would be mi nimal and would be overwhelmed by the range of salinity concentrations occurring naturally. 12 The SWCB accepted the findings from th e one-dimensional VIMS model and the supplemental cumulative analysis. As a conditio n to issuing the permit, however, the SWCB required Newport News to develop a salinity monitoring plan using “multidimensional hydrodynamic salinity modeling to analyze short term and vertical variations in salinity in the Mattaponi River with the permitted intake in operation.” Once the reservoir becomes

12 On this issue, we concur with the many courts that have “held consis tently that the rule of reason guides every aspect” of an agency’s approach “including its choice of scientific method.” Citizens Against Burlington, Inc. v. Busey , 938 F.2d 190, 200-01 (D.C. Cir. 1991); see also Valley Citizens for a Safe Environment v. Aldridge , 886 F.2d 458, 469 (1st Cir. 1989) (noting “the law makes clear that the agency has discretion ‘to de termine proper testing methods’” (citations omitted)); Webb v. Gorsuch , 699 F.2d 157, 160 (4th Cir. 1983) (“When there is conflicting expert opini on, it is for the admini strative agency and not the courts to resolve the conflict.").- 26 - operational, salinity fluctuations outside the origin al estimates must be reported within one week and could result in additional pe rmit restrictions, incl uding modification or termination of the permit. The SWCB also imposed a comprehensiv e series of permit conditions restricting the volume, rate, times, and manner of freshwater withdrawals. The Tribe and Alliance find fault with nearly every aspect of the SWCB’s treatment of this issue and highlight evidence in the administrative record purporting to contest the agency’s findings. We acknowledge these criticisms but, as an appellate court, find them insufficient to upend the SWCB’s decision. The question we must answer is not whether an agency could reach a different conclusion on this reco rd, but whether “a reasonable mind would necessarily come to a different conclu sion.” Virginia Imps., Ltd. 41 Va. App. at 819, 589 S.E.2d at 476 (quoting Va. Real Estate Comm’n , 226 Va. at 269, 308 S.E.2d at 125 (emphasis in original)). Put another way, the issue is not whether suffici ent evidence supports th e Tribe’s and Alliance’s factual critique, but whether su fficient evidence supports the SWCB’s decision. We find that the administrative record supports th e SWCB’s decision on this issu e, and thus, we reject the assertion that the SWCB failed to protect instream beneficial uses by ignoring the impact of the project on salinity levels. (d) The Project’s Impact On Wetlands To create the reservoir, the project propos es to dam up Cohoke Mill Creek and flood about 437 acres of wetlands in th e creek basin. To address this issue, the SWCB issued the permit subject to the condition that Newport News “mitigate for the loss of 437 acres of nontidal vegetated wetlands and open water habitat by the successful creation or restor ation of vegetated wetlands at a 2:1 level of compensation.” See Code § 62.1-44.15:5(D) (“Permits shall contain requirements for compensating impacts on wetlands .”). The permit also requires the final mitigation plan to be reviewed and approved, afte r public hearings, by the DEQ. The final plan- 27 - must “establish success criteria by which the succe ssful restoration or creation of wetlands shall be evaluated,” including “specific targets with re gard to plant coverage, types of plants, density and survival of planned woody species.” The plan must also include a monitoring component to ensure its compliance with the SWCB’s expectations. Alliance raises two objections to this aspect of the SWCB ’s decision. First, Alliance asserts that the SWCB should have postponed its decision until the issuance of a final habitat evaluation study (HEP study) by the U.S. Fish a nd Wildlife Service. Se cond, Alliance contends the wetland mitigation conditions imposed by the SWCB are unsatisfactory because the conditions do not adequately avoid and mini mize impacts to wetlands. For these reasons, Alliance argues that the SWCB’s decision to issue the permit was both “premature and unlawful.” We find substantial evidence supporting the SWCB’s decision on both issues. On the prematurity issue, Alliance argues th at “federal resource agencies” have voiced their disagreement with the proposed mitigation pl an and have insisted that the HEP study should be completed first. One of these federal agenci es, Alliance contends, has made clear that a state permit “should not be granted until the applicant’s completed mitigation plan can be reviewed by the involved [federal] agencies . . . .” This ar gument carries little weight with us. It is the decision of the SWCB, not the federal resource ag encies, that we must review on appeal. The state water permit is one of the many preconditions to obtaining the CWA permit. If we were to adopt Alliance’s approach and reverse this seque nce, there would be no end to the process. Narrowly focused, the issue is this: Does th e administrative record provide substantial evidence supporting the SWCB’s decision to issue the permit when it did

⎯ rather than postpone the decision until the federal resource agencies offered their views or until additional studies were completed? Other than repeating the fede ral agencies’ objections to the initial wetlands mitigation proposal, Alliance does not point to specific evidence demonstrating the factual- 28 - insubstantiality of the SWCB’s decision on this issue. Without such a showing, we cannot characterize the SWCB’s refusal to postpone the decision as arbitr ary and capricious as a matter of law. 13 Whether we think it imprudently prematur e or unnecessarily delayed, the timing of the
SWCB’s decision is it self a judgment call

⎯ one within the sound disc retion, as well as the specialized competence, of the SWCB. As the Court of App eals for the D.C. Circuit explained in an analogous context: One of the costs that must be weighed by decisionmakers is the cost of uncertainty

⎯ i.e. , the costs of proceeding without more and better information. Where that cost has been considered, and where the responsible decisionm aker has decided that it is outweighed by the benefits of proc eeding with the project without further delay, the courts may not substitute their judgment for that of the decisionmaker and insist th at the project be delayed while more information is sought. Alaska v. Andrus , 580 F.2d 465, 473-74 (D.C. Cir. 1978) (citing Kleppe v. Sierra Club , 427 U.S. 390, 410 n. 21 (1976)). 14

13 Even in the federal CWA review process, the Army Corps “is not bound to agree with the conclusions reached by these resource agencies, but simply required to listen to and consider their views in the decisionmaking process.” Sierra Club v. U.S. Army Corps of Eng’rs , 772 F.2d 1043, 1054 (2d Cir. 1985); see also Citizens Against Burlington, Inc , 938 F.2d at 201 (noting that “under the rule of reas on, a lead agency does not have to follow the EPA's comments slavishly”); North Carolina v. Hudson , 731 F. Supp. 1261, 1270 (E.D.N.C. 1990) (“With good reason, however, nothing in the regulations, the statutes, or the cases interpreting either requires the Corps to follow the views of such agencies. Such a re quirement would give the agencies veto power over Corps decisions.” (e mphasis in original)), aff’d , Roanoke River Basin Ass’n v. Hudson , 940 F.2d 58, 61 (4th Cir. 1991).

14 See also County of Suffolk v. Sec’y of Interior , 562 F.2d 1368, 1378 (2d Cir. 1977) (“But where a multistage project can be modifiedor changed in the future to minimize or eliminate environmental hazards disclosed as th e result of information that will not become available until the future, and the Government rese rves the power to make such a modification or change after the information is available and incor porated in a further EIS, it cannot be said that deferment violates the ‘rule of reason.’ Indeed, in considering a project of such flexibility, it might be both unwise and unfair not to postpone th e decision regarding the next stage until more accurate data is at hand.”); Jicari lla Apache Tribe of Indians v. Morton , 471 F.2d 1275, 1280-81 (9th Cir. 1973) (“If we were to impose a requ irement that an impact statement can never be prepared until all relevant environmental effects were known, it is doubtful that any project could- 29 - (e) Duty To Prevent Waste And The Estimates Of Future Water Supply Needs Finally, Alliance argues the SWCB violated st ate policy declared in Code § 62.1-11(C) to prevent “waste or unreasonable us e” of water because the project relies on exaggerated estimates of future water needs for the municipalities in the Study Group. Here again, we need not pass judgment on whether we concur with these estim ates. We ask only whether, “considering the record as a whole, a reasonable mind would necessarily come to a different conclusion.” Va. Imps., Ltd. , 41 Va. App. at 819, 589 S.E.2d at 476 (emphasis in original). Newport News presented several studies predic ting that water supply deficits would grow to as much as 30 to 40 mgd within the next se veral decades. Despite questioning these estimates as “a little high,” the DEQ found the projections were “not so high that you would call them unreasonable.” The DEQ also discounted Alliance’s es timate of future deficits as too low. “The truth may be in the middle,” the DEQ concluded. Working from that premise, the DEQ found the “reservoir is needed” and “this location is the right site.” Accepting these recommendations, the SWCB issued the permit with conditions that provide continuing scrutiny of the rate, volume, and frequency of withdrawals. We need not go into detail examining the merits and demerits of the various water supply and demand studies. Suffice it to say, reasonable people can disagree as to the exact magnitude of the problem; but none can deny that it exists. Any time local government makes plans for
future water needs

⎯ particularly with projects of this immense scope

⎯ assumptions must be

________________________ ever be initiated. While appellants here have limited their argument to one specific piece of information, that does not solve the larger problem. At any point in time, there are likely to be any number of studies underway concerning a host of environmenta l or other societal problems. What appellants seek is for this Court to substitute its judgment for that of the Secretary, who is charged by NEPA with preparing a thorough statement of the environmental consequences of a proposed project, as to what particular informati on will be required to complete that statement. We decline to assume that role.”).- 30 - made about population and development trends, the type and size of the e volving industrial base, and the viability of conservation efforts. That those assumptions can be criticized as imperfect, by itself, proves nothing. Commendable fore sight necessarily invol ves some attempt at forecasting the future, an inexact effort under the best of conditions. What may be pure guesswork to some is an educated estimate to others. Our duty of appellate oversight must be discha rged with the appropria te deference to the
SWCB

⎯ the state policy maker task ed by the General Assembly with the “responsibility for planning the development, conser vation and utilization of Virginia ’s water resources.” Code § 62.1-44.36. From this perspective, we have reviewed the factual basis for the SWCB’s decision to accept the projections offered in s upport of the project. We find nothing in these assumptions that can be fairly dismissed as unreasonable or irrational. Given the permit condition authorizing the SWCB to regulate w ithdrawal volume as new demand data becomes available, we cannot say that the SWCB vi olated its statutory duty to protect the Commonwealth’s waters from bei ng wasted or unreasonably used.
VI. C ONCLUSION In this consolidated appeal, we hold that:

 The VAPA authorizes judicial review of the SWCB’s decisi on to issue the permit in this case. Fo r this reason, we deny th e Commonwealth’s motion to dismiss on sovereig n immunity grounds.

 The State Water Control Law does not authorize the SWCB to adjudicate the Tribe’s freestanding treaty claim. Nor does the VAPA permit the circuit court to do so on appeal of the SWCB’s permit deci sion. Thus, neither erred by declining to exercise such jurisdiction.

 We do not address whether the circ uit court, in its general non-VAPA jurisdiction, erroneously applied state la w to the treaty cl aim and interpreted Article XVIII to require all treaty disput es to be resolved by the Governor without the possibility of j udicial review. This portion of the ap peal will be transferred to the Virginia Supreme C ourt pursuant to Co de § 8.01-677.1.- 31 -  The circuit court did not err in affi rming the SWCB’s decision under the VAPA. The SWCB applied the correct lega l standard and rested its decision upon substantial evidence. In sum, we affirm all as pects of the circuit cour t’s final decision over which we have appellate jurisdiction and transfer the remainder to the Vi rginia Supreme Court.
Affirmed in part and transferred in part

.