COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Humphreys and Senior Judge Willis 

Argued at Alexandria, Virginia 

FRANCES BROADDUS CRUTCHFIELD AND 

 HENRY RUFFIN BROADDUS 

 OPINION BY 

v. Record No. 1037-04-2 JUDGE JERE M.H. WILLIS, JR. 

 MAY 3, 2005 

STATE WATER CONTROL BOARD, 

 DEPARTMENT OF ENVIRONMENTAL QUALITY AND 

 THE COUNTY OF HANOVER, VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Melvin R. Hughes, Jr., Judge 

 Benjamin A. Thorp IV (William B. Ellis; Ellis Thorp & Jewett, 

PLLC; Ellis & Thorp, PLLC, on briefs), for appellants. 

 

 John K. Byrum, Jr., Assistant Attorney General (Jerry W. Kilgore, 

Attorney General; Roger L. Chaffe, Senior Assistant Attorney 

General; Rick R. Linker, Assistant Attorney General, on brief), for 

State Water Control Board and Department of Environmental 

Quality. 

Barbara M. Rose, Deputy County Attorney (Sterling E. Rives, III, 

County Attorney, on brief), for the County of Hanover. 

Amici Curiae: The Chesapeake Bay Foundation, Inc. and 

The Sierra Club (Christopher C. Spencer; Robert L. Wise; Robyn 

P. Ayres; Bowman and Brooke LLP, on brief), for appellants. 

 Frances Broaddus Crutchfield and Henry Ruffin Broaddus (appellants) appeal a final order 

of the trial court finding that the State Water Control Board (SWCB) properly issued a Virginia 

Pollution Discharge Elimination System (VPDES) permit to Hanover County (the County) for the 

discharge of treated wastewater from the County’s Totopotomy Wastewater Treatment Plant into 

the Pamunkey River. On appeal, appellants contend the trial court erred by holding: (1) the SWCB 

did not violate State Water Control Law or its own regulations when issuing the VPDES permit 
 -2-

authorizing a new discharge of oxygen consuming pollutants to a stream that already violates Water 

Quality Standards for dissolved oxygen without first demonstrating that the discharge is consistent 

with a plan that will achieve those Water Quality Standards; and (2) the decision by the SWCB to 

issue the VPDES permit was supported by “substantial evidence” when it rested entirely on an 

assumption—contradicted by evidence—that effluent limitations that were predicted not to 

substantially degrade water quality in small, flowing, non-tidal streams would also not substantially 

degrade water quality in a large, slow-moving, tidal river such as the Pamunkey. 

 We affirm the trial court’s decision that the SWCB properly issued the VPDES permit. 

Background

 Appellants own Newcastle Farm, an 878 acre property located in Hanover County. The 

farm has several miles of river frontage along the Pamunkey River. In 1997, the County applied for 

a VPDES permit to discharge up to ten million gallons per day of treated wastewater into the 

Pamunkey River from an outfall located on appellants’ farm. Prior to issuing the permit, the SWCB 

solicited comments from various state and federal agencies. The United States Environmental 

Protection Agency and the Virginia Department of Health indicated they had no objections to the 

issuance of the permit as drafted. 

 In January 1999, the SWCB held a public hearing on the draft permit. Appellants presented 

evidence at the hearing, and they submitted written comments to the SWCB. The comments 

explained appellants’ opposition to the project based on their concerns that the proposed discharge 

would adversely affect the river’s already impaired water quality, would cause damage to fish and 

other wildlife, and would deprive them of recreational uses of the river. Numerous other persons 

provided both oral and written comments concerning the permit. The SWCB staff provided to the 

SWCB a summary of these comments and the SWCB staff responses to the comments prior to the 

final consideration of the SWCB whether to issue the permit. 
 -3-

 One of the major issues raised in the public comment period was the impact of the proposed 

discharge on the dissolved oxygen (DO) levels of the Pamunkey River. The Pamunkey River near 

the proposed discharge point had a known history of naturally occurring low DO levels, particularly 

in the summer months. The SWCB staff believed the extensive marshes in the area were the likely 

cause of the low DO conditions. Since 1987, the SWCB staff used effluent limitations of 10 mg/l 

CBDO5, 10 mg/l TSS, and 3 mg/l TKN for discharges that do not meet water quality standards due 

to swamp and marsh-like conditions. According to the “Summary of Issues and [SWCB] Staff 

Response” document, these “10-10-3” limitations “establish a level of treatment which in the best 

professional judgment of the [SWCB]’s staff will not further contribute to lower dissolved oxygen 

levels in the receiving stream, regardless of the size of the discharge.” In addition, the SWCB staff 

had used this same standard in the past to establish effluent limitations for three other discharges 

into the Pamunkey River. 

 Following the public comment period, the SWCB staff reconsidered the permit limitations 

for DO and recommended a change in the minimum permit level from 5.0 mg/l to 6.5 mg/l. The 

staff concluded that under warm weather conditions the limit of 6.5 mg/l would ensure that the DO 

in the discharge was at or above the background level in the river. Appellees referred to this as a 

self-sustaining limit—one that will not cause or contribute to water quality violations. 

 On April 28, 1999, the SWCB granted the County the VPDES permit at issue in this case. 

We note that the permit expired on April 28, 2004. However, the County timely applied for renewal 

of the permit and, pursuant to 9 VAC 25-31-70(B), the expired permit continues as “fully effective 

and enforceable” pending decision on the renewal application.1 

 1

 9 VAC 25-31-70 provides in part: 

A. The permit shall expire at the end of its term, except that the 

conditions of an expired permit continue in force until the effective 

date of a new permit if: 
 -4-

 Appellants appealed the issuance of the permit to the trial court pursuant to the Virginia 

Administrative Process Act. Code §§ 2.2-4000 through 2.2-4033. Appellants argued to the trial 

court that the SWCB violated its own regulations by issuing the permit. Appellants contended that 

SWCB regulations required the SWCB to determine that the proposed discharge will not cause or 

contribute to violations of water quality standards, impair uses of the river, or harm human, plant or 

animal life. Appellants argued that the SWCB failed to make these findings and that the record 

lacked substantial evidence to support the issuance of the permit. Further, appellants asserted that 

any discharge into the river would contribute to the low DO problems in the river. 

 The trial court found that, upon approving the permit, the SWCB imposed self-sustaining 

limits which are “supposed to establish a level of treatment of the effluent discharge that will not 

cause or contribute to water quality violations” in the Pamunkey River. The court stated that, 

according to the SWCB, the DO levels of the treated discharge are so low that it exerts “no oxygen 

demand load on the water in the river.” Furthermore, the court noted that the SWCB contends that 

the determining factor of the impact to the river water is not how many pounds of nutrients are 

discharged, but the concentration of the nutrients in the discharge. 

 Citing several technical memoranda in the agency record, the trial court found that evidence 

supported the conclusion by the SWCB that with the permit limits in place, the effluent from the 

wastewater treatment plant would “not further contribute to lower dissolved oxygen levels” in the 

river. The trial court further held that an SWCB regulation pertaining to new discharges to 

 

 1. The permittee has submitted a timely application . . . 

which is a complete application for a new permit; and 

 2. The [SWCB], through no fault of the permittee, does not 

issue a new permit with an effective date on or before the 

expiration date of the previous permit. 

B. Permits continued under this section remain fully effective and 

enforceable. 
 -5-

officially designated impaired waterways was inapplicable to this case because the regulation does 

not prohibit new permits where the discharge will not cause or contribute to violation of water 

quality in the receiving water. See 9 VAC 25-31-50(C)(9). The trial court concluded that the 

SWCB issued the permit in compliance with the applicable provisions of state and federal law, 

including the water quality standards. Appellants appealed the trial court’s decision to this Court. 

Analysis

 “In an appeal to the circuit court from a decision by an agency, the burden is upon the 

appealing party to demonstrate error.” Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697, 

700-01 (1998). Judicial review of an agency decision is limited to determining (1) “[w]hether the 

agency acted in accordance with law;” (2) “[w]hether the agency made a procedural error which 

was not harmless error;” and (3) “[w]hether the agency had sufficient evidential support for its 

findings of fact.” Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1998). 

The review of an agency’s factual findings “is limited to determining whether substantial evidence 

in the agency record supports its decision.” Avante at Lynchburg, Inc. v. Teefey, 28 Va. App. 156, 

160, 502 S.E.2d 708, 710 (1998). Under the substantial evidence standard, the reviewing “court 

may reject the agency’s findings of fact ‘only if, considering the record as a whole, a reasonable 

mind would necessarily come to a different conclusion.’” Virginia Real Estate Comm’n v. Bias, 

226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (quoting B. Mezines, Administrative Law § 51.01 

(1981)). “The phrase ‘substantial evidence’ refers to ‘such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.’” Id. (citation omitted). 

 In accordance with familiar principles of appellate review, “we review the facts in the light 

most favorable to sustaining the [SWCB]’s action,” Atkinson v. Virginia Alcohol Beverage Control 

Comm’n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985), and “take due account of the 
 -6-

presumption of official regularity, the experience and specialized competence of the agency, and the 

purposes of the basic law under which the agency has acted.” Code § 2.2-4027. 

 State Water Control Law prohibits the discharge of pollutants into the waters of Virginia 

except in compliance with a permit issued by the SWCB. Code § 62.1-44.5. Under the authority of 

the water control law, the SWCB issues VPDES discharge permits to municipal sewage treatment 

plants. Code § 62.1-44.19. Here, substantial evidence supported the trial court’s ruling that the 

SWCB issued the permit in accordance with the applicable water control laws and regulations. 

 The agency record consists of numerous technical memoranda addressing stream analyses 

and effluent permit recommendations. During the permitting process, the SWCB staff consulted 

with federal and state agencies such as the United States Environmental Protection Agency, the 

Virginia Department of Health, and the Virginia Department of Game and Inland Fisheries. These 

agencies submitted written comments concerning the draft permit, which were made a part of the 

agency record. In response to concerns expressed during the public comment period, the SWCB 

staff undertook further evaluation of the draft permit and recommended more stringent permit 

requirements to ensure that the dissolved oxygen in the discharge was at or above background level 

in the river. The SWCB staff made presentations to and answered questions from the SWCB 

concerning the permitting process. The SWCB also considered the written testimonial and 

scientific evidence contained in the agency record prior to issuing the permit. 

 In addition, several technical memoranda prepared by the SWCB staff support the 

established permit limits. One document entitled “Advisory Notification of Effluent Limits for 

Swamp and Marsh Waters” by A.J. Anthony recommended the 10-10-3 limit, stating that staff 

have found over the past years, through application of modeling 

technology to small streams, that the [10-10-3] limits are 

representative of effluents that are “self-sustaining;” that is: such 

an effluent will not normally violate the stream standard even if the 

stream consists of 100% effluent. 
 -7-

Furthermore, the SWCB had used these same permit limits for other sewage treatment 

plants. In addition, the document entitled “Summary of Issues and [SWCB] Staff Response” 

stated that the 10-10-3 recommended permit levels “establish a level of treatment which in the 

best professional judgment of the [SWCB] staff will not further contribute to lower dissolved 

oxygen levels in the receiving stream, regardless of the size of the discharge.” 

“Where the issue is whether there is substantial evidence to support findings of fact, great 

deference is to be accorded the agency decision.” Johnston-Willis, 6 Va. App. at 246, 369 

S.E.2d at 9. “In determining whether credible evidence exists, the appellate court does not retry 

the facts, reweigh the preponderance of the evidence, or make its own determination of the 

credibility of the witnesses.” Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 

S.E.2d 32, 35 (1991). 

The decision of the SWCB addressed the potentially harmful impacts of the discharge by 

imposing stringent permit limits. As a result, SWCB acted within the scope of its authority in 

issuing the permit. Furthermore, the decision to issue the permit was supported by substantial 

and credible evidence in the agency record. Therefore, the trial court did not err in affirming the 

decision of the SWCB. 

Appellants produced before the trial court and have argued before this Court items of 

evidence not laid before the SWCB. Indeed, much of this evidence postdates the issuance of the 

permit. Appellants rely on Code § 2.2-4027 as authority for the courts to consider this evidence. 

The pertinent portion of the statute states: 

Where there is no agency record so required and made, any 

necessary facts in controversy shall be determined by the court 

upon the basis of the agency file, minutes, and records of its 

proceedings under [Code] § 2.2-4007 or [Code] § 2.2-4019 as 

augmented, if need be, by the agency pursuant to order of the court 

or supplemented by any allowable and necessary proofs adduced in 

court . . . . 
 -8-

Thus, Code § 2.2-4027 allows the record to be supplemented by “any allowable and 

necessary proofs adduced in court” only where there is no agency record. See School Board v. 

Nicely, 12 Va. App. 1051, 1062 n.2, 408 S.E.2d 545, 551 n.2 (1991) (“[T]his language only 

allows circuit courts to assemble a record where no agency record exists, and still the court must 

accept whatever findings the agency made in its files, minutes, records or elsewhere.”). Clearly, 

there is such an agency record here. Moreover, the standard of judicial review provided by the 

Virginia Administrative Process Act is review of the agency decision in the light of the record 

before it. 

 When the decision on review is to be made on the agency 

record, the duty of the court with respect to issues of fact shall be 

limited to ascertaining whether there was substantial evidence 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. Furthermore, to allow parties to freely supplement the agency record after the 

agency has rendered a decision would authorize trial of the merits of the case de novo, resulting 

in the trial court making, not reviewing, the administrative decision. 

A case subject to the standard of review outlined in Code 

§ [2.2-4027] [and] . . . the factual issues on appeal [therein] are 

controlled solely by the agency record. The reviewing court is not 

free to take additional evidence, even at the request of one of the 

parties. Therefore, under the VAPA, the circuit court’s role in an 

appeal from an agency decision is equivalent to an appellate 

court’s role in an appeal from a trial court. In this sense, the 

General Assembly has provided that a circuit court acts as an 

appellate tribunal. 

Nicely, 12 Va. App. at 1061-62, 408 S.E.2d at 551 (citations and footnote omitted). 

Accordingly, the post-agency decision evidence is not appropriate evidence for consideration of 

whether the SWCB properly issued the permit. We note, however, that consideration of the 

permit renewal application will involve the merits of the permit to be considered based on the 

current situation. 
 -9-

 Pursuant to Code § 62.1-44.19(A), an owner of a sewage treatment works shall apply to 

the SWCB for a permit to discharge into state waters. Code § 62.1-44.19(B) provides that the 

SWCB “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.” In 

addition to the statutory requisites, regulations promulgated by the SWCB delineate the 

procedures and requirements to be followed in the VPDES permitting process. One of these 

regulations provides that no VPDES permit shall be issued: 

To a new source or a new discharger, if the discharge from its 

construction or operation will cause or contribute to the violation 

of water quality standards. The owner or operator of a new source 

or new discharger proposing to discharge into a water segment 

which does not meet applicable water quality standards or is not 

expected to meet those standards even after the application of the 

effluent limitations required by the law and [Code] 

§§ 301(b)(1)(A) and 301(b)(1)(B) of the [federal Clean Water 

Act], and for which the [Virginia Department of Environmental 

Quality] has performed a pollutants load allocation for the 

pollutant to be discharged, must demonstrate before the close of 

the public comment period, that: 

 a. There are sufficient remaining pollutant load allocations 

to allow for the discharge; and 

 b. The existing dischargers into that segment are subject to 

compliance schedules designed to bring the segment into 

compliance with applicable water quality standards. 

9 VAC 25-31-50(C)(9). 

 Appellants contend that this regulation prohibits new discharges of pollutants to waters 

that violate applicable standards for that pollutant unless a pollutant load allocation analysis is 

performed and it demonstrates that the Water Quality Standard will be achieved. We find that 

the trial court correctly held that the first sentence of the regulation controls. The SWCB had 

before it substantial evidence that the proposed effluent, itself being “self-sustaining” and 

meeting water quality standards, would not “cause or contribute to the violation of water quality 
 - 10 -

standards.” Appellants contend that the effluent authorized by the permit would contain oxygen 

consuming materials, thus contributing to the pollution of the river. However, the issue is not the 

raw quantity of such materials, but the concentration of the nutrients in the discharge and the 

resulting water quality. Evidence in the record provides a basis for the conclusion of the SWCB 

that with the established permit limits, the treated effluent will not contribute to lower DO levels 

in the river. 

 Appellants also argue that the second sentence of the regulation required a pollutant load 

allocation, an assessment of the proposed effluent against that allocation, and a determination 

that the proposed operation would contribute to bringing the river as a whole into water quality 

compliance. We find that the trial court correctly held that the making of such an allocation is a 

predicate condition to the application of the second sentence, not a consequence of that sentence. 

The record discloses the making of no such allocation, hence the second sentence of the 

regulation does not apply here. Furthermore, the proposed effluent being compliant with water 

quality standards, its infusion will tend to ameliorate pro tanto the overall quality of the river. 

 For these reasons, we affirm the decision of the trial court. 

 Affirmed.