COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Clements and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

SUZANNE H. SCHEER, 

 JULIAN W. SCHEER, MR. AND MRS. 

 STEVEN RODGERS, BARBARA KRAMER 

 SILBERSIEPE, HALLIDAY AND WILLIAM 

 WOODBURY, MICHAEL AND MARGRETA 

 STEVENS, FERA AND ARMAND SIMONE AND 

 DEAN N. McDOWELL 

 MEMORANDUM OPINION* BY 

v. Record No. 0095-00-4 JUDGE RICHARD S. BRAY 

 JULY 17, 2001 

COMMONWEALTH OF VIRGINIA, ex rel. 

 STATE WATER CONTROL BOARD AND 

 COUNTY OF FAUQUIER 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Thomas D. Horne, Judge 

 Gail Starling Marshall for appellants. 

 Deborah Love Feild, Assistant Attorney General 

 (Mark L. Earley, Attorney General, on brief), 

 for appellee Commonwealth of Virginia, ex rel. 

 State Water Control Board. 

 Kevin J. Burke, Deputy County Attorney (Paul S. 

 McCulla, County Attorney, on brief), for appellee 

 County of Fauquier. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Suzanne H. Scheer, et al., (appellants) appeal an order of 

the trial court affirming the issuance by the State Water Control 

Board (SWCB) of a Virginia Water Protection Permit (VWPP) to 

Fauquier County, Virginia (Fauquier). Citing numerous perceived 
deficiencies in the permit and underlying record, appellants 

contend the SWCB "exceeded its statutory authority and violated 

the statutory mandates for such a permit." Finding no error, we 

affirm the trial court. 

 The parties are fully conversant with the voluminous and 

complex record, and this memorandum opinion recites only those 

facts necessary to a disposition of the appeal. In accordance 

with well established principles, we review the evidence in the 

light most favorable to the prevailing party below, Fauquier in 

this instance. 

I. 

 Pursuant to Code § 62.1-44.15:5, Fauquier applied to SWCB for 

a VWPP to construct a concrete dam across Cedar Run, a local 

stream, together with attendant undertakings and facilities (the 

project), to provide a water supply to Fauquier and aid in flood 

control. Designated "Cedar Run 6[,] Auburn Reservoir (Dam)," the 

resulting lake would embrace a surface area of approximately 183 

acres, inundate 16 acres of existing wetlands and 11,000 feet of 

"stream channel," and otherwise impact Cedar Run and related 

habitat and adjacent properties. Because the project involved the 

"discharge of dredge or fill material" into Cedar Run, § 404 of 

the Federal Clean Water Act, 33 U.S.C. § 1341, (federal act), 

required a permit from the United States Corps of Engineers (the 

Corps). Section 401 of the federal act precludes issuance of such 

permit absent either "a certification from the State in which the 

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discharge originates or will originate" that the proposed activity 

will comply with the federal act, or a waiver of such 

certification. 33 U.S.C. § 1341(a)(1). 

 A VWPP issued in accordance with Code § 62.1-44.15:5(A) 

"shall constitute the certification required under § 401 of the 

[federal act]," Code § 62.1-44.15:5(A). The SWCB is required to 

issue such permit once "it has determined that the proposed 

activity is consistent with the provisions of the [federal act] 

and the State Water Control Law and will protect instream 

beneficial uses." Code § 62.1-44.15:5(B). "The preservation of 

instream flows for purposes of . . . the protection of fish and 

wildlife resources and habitat [and] recreation . . . is a 

beneficial use of Virginia's waters. . . . Domestic and other 

existing beneficial uses1 shall be considered the highest priority 

uses." Code § 62.1-44.15:5(C). In resolving the issues incident 

to a VWPP, the SWCB may impose conditions on the permit, 

including, "but . . . not limited to, the volume of water which 

may be withdrawn as a part of the permitted activity" and 

"compensating mitigation for adverse impacts to wetlands." 

Code§ 62.1-44.15:5(C), (E). 

 1

 "'Beneficial use'" is defined by Code § 62.1-10 to "mean[] 

both instream and offstream uses. Instream beneficial uses 

include, but are not limited to, the protection of fish and 

wildlife habitat, . . . recreation . . . and cultural and 

aesthetic values. Offstream beneficial uses include, but are 

not limited to, domestic (including public water supply) . . . 

uses. Public water supply uses for human consumption shall be 

considered the highest priority." 

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 Acting on Fauquier's application, the SWCB solicited both 

public and governmental comment, conducted hearings and received 

considerable documentary evidence. Accordingly, the resulting 

permit was subject to numerous conditions addressing a myriad of 

issues related to the project. Aggrieved by the SWCB decision, 

appellants unsuccessfully sought "judicial relief" in the trial 

court pursuant to Code § 62.1-44.29, a procedure governed by the 

provisions of Code § 9-6.14:1 et seq., the Administrative Process 

Act (APA). Unsuccessful, appellants now appeal to this Court. 

See Code § 62.1-44.30. 

II. 

 Code § 9-6.14:17 establishes "[t]he parameters of judicial 

review of 'agency action.'" Envtl. Def. Fund, Inc. v. Va. State 

Water Control Bd., 15 Va. App. 271, 277, 422 S.E.2d 608, 611 

(1992). At the outset, the statute requires "the party 

complaining of agency action to designate and demonstrate an error 

of law subject to review by the court." Code § 9-6.14:17. "Such 

issues of law," specifically enumerated by Code § 9-6.14:17, 

"'fall into two categories: first, whether the agency . . . acted 

within the scope of [its] authority, and second, whether the 

decision itself was supported by the evidence.'"2 Id. (citing 

 2

 "[I]ssues of law" subject to review by the court include: 

(i) accordance with constitutional right, 

power, privilege, or immunity, (ii) 

compliance with statutory authority, 

jurisdiction limitations, or right as 

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Johnson-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 

7 (1988)). 

Where the agency has the statutory 

authorization to make the kind of decision 

it did and it did so within the statutory 

limits of its discretion and with the intent 

of the statute in mind, it has not committed 

an error of law in the first category. The 

second category of error is limited to a 

determination whether there is substantial 

evidence in the agency record to support the 

decision. 

Johnson-Willis, 6 Va. App. at 242, 369 S.E.2d at 7. 

 "'The phrase "substantial evidence" refers to such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion. Under this standard, . . . the 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." Aegis Waste Solutions, Inc. v. Concerned 

Taxpayers of Brunswick Co., 261 Va. 395, 404, 544 S.E.2d 660, 

665 (2001) (citation omitted). "In contrast, judicial review of 

a 'legal issue' requires 'little deference[,]' unless it . . . 

'falls within an agency's area of particular expertise.'" 

 

provided in the basic laws as to subject 

matter, the stated objectives for which 

regulations may be made, and the factual 

showing respecting violations or entitlement 

in connection with case decisions, (iii) 

observance of required procedure where any 

failure therein is not mere harmless error, 

and (iv) the substantiality of the 

evidential support for findings of fact. 

Code § 9-6.14:17. 

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Envtl. Def. Fund, 15 Va. App. at 278, 422 S.E.2d at 612 

(citation omitted) (emphasis added). 

 Thus, "agency action, even when 'supported by substantial 

evidence,' must be set aside if judicial review reveals a 

failure 'to observe the required procedures or to comply with 

statutory authority.'" Id. (citation omitted). 

However, where the question involves an 

interpretation which is within the 

specialized competence of the agency and the 

agency has been entrusted with wide 

discretion by the General Assembly, the 

agency's decision is entitled to special 

weight in the courts[,] . . . "and judicial 

interference is permissible only for relief 

against . . . arbitrary or capricious action 

that constitutes a clear abuse of the 

delegated discretion." 

Johnson-Willis, 6 Va. App. at 244, 369 S.E.2d at 8 (citation 

omitted). 

 Appellants' several assignments of error clearly advance 

legal issues. However, such issues implicate both legal and 

factual questions and "mixed question[s] of fact and law [are] 

reviewable by this Court on appeal." The Country Vintner, Inc. 

v. Rosemont Estates, 35 Va. App. 56, 63, 542 S.E.2d 797, 800 

(2001). Thus, guided by Code § 9-6.14:17, we consider the 

"[i]nterrelated factual and legal issues . . . together in the 

context of the entire record," examining each "under the 

appropriate standard of review" and with due deference, to 

determine "'whether the result reached . . . could reasonably be 

said, . . . to be within the scope of the legal authority of the 

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agency.'" Envtl. Def. Fund, 15 Va. App. at 279, 422 S.E.2d at 

612. Viewed accordingly, we address appellants' several 

arguments seriatim. 

III. 

 Appellants first assert that the VWPP in dispute fails to 

protect "instream beneficial uses," accord "highest priority" to 

existing beneficial uses, and comport with the federal act, as 

mandated by Code § 62.1-44.15:5(B). In support of such 

contentions, appellants rely upon a "submission" by the Virginia 

Department of Game and Inland Fisheries (DGIF) concluding that 

"loss of stream habitat," resulting from inundation and reduced 

stream "flows and increased water temperature,"3 "probably will 

adversely impact" certain "sportfish species," specifically 

including the propagation of smallmouth bass, and recreational 

"stream fishing" opportunities. Further, appellants maintain 

that "low flows authorized by the [VWPP]" do not "protect . . . 

[winter and early spring] recreational . . . canoeing" on Cedar 

Run. In a related argument, appellants reason that loss of 

smallmouth bass breeding habitat, an existing beneficial 

instream use, impermissibly compromises the water quality of 

Cedar Run. 

 3

 DGIF speculated that periodic "cold water releases" 

intended to remediate temperature increases "may result in 

substantial changes in the existing warmwater aquatic 

community." 

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 Appellants' challenges are predicated on the notion that a 

VWPP in conformity with the mandates of Code § 62.1-44.15:5 must 

"do no harm" to "beneficial stream uses." However, appellants' 

argument ignores the manifest purpose of the permitting process 

and attendant responsibility and authority of the SWCB pursuant 

to the State Water Control Law,4 Code § 62.1-44.2, et seq. The 

certification mechanism of Code § 62.1-44.15:5 contemplates 

alteration and disruption of beneficial stream uses resulting 

from the "discharges of dredge or fill material," through the 

issuance of permits for such activity in conjunction with § 404 

of the federal act. However, in acting on a VWPP application, 

the SWCB is directed to protect such uses through denial of a 

permit, if necessary, or the imposition of appropriate 

conditions. Thus, to construe the permit standard as a 

precluding any "harm" would obviate the statutory purpose, an 

absurd result. Branch v. Commonwealth, 14 Va. App. 836, 839, 

419 S.E.2d 422, 424 (1992) ("The plain, obvious, and rational 

meaning of a statute is always preferred to any curious, narrow 

or strained construction, a statute should never be construed so 

that it leads to absurd results."). 

 4

 State Water Control Law is intended, in pertinent part, 

"to: (1) protect existing high quality state waters . . . 

promote water resource conservation, management and distribution 

. . . in order to provide for the health, safety and welfare of 

the present and future citizens of the Commonwealth." Code 

§ 62.1-44.2. 

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 Here, the record discloses that Cedar Run presently suffers 

from "many days when the flow is zero," a "very damaging 

condition for aquatic life." "SPECIAL CONDITIONS" of the VWPP 

establish a "threshold flow" to assure "that the project will 

not cause [a "streamflow level"] to occur more often than it 

would have occurred without the project" and a "floor flow" to 

maintain a "streamflow level" "at all times." Threshold flows 

imposed by the SWCB following the original "submission" by DGIF, 

comported with DGIF recommendations. "[C]ontrol outlet 

structures . . .[,] capable of releasing the required minimum 

instream flows into Cedar Run," insure the maintenance of 

required flow rates, and mandatory reporting to the SWCB 

monitors compliance. Violations must be disclosed to SWCB 

"within one week following discovery." 

 The Department of Environmental Quality (DEQ), in 

commenting on issues pertaining to the VWPP, noted that 

stratification of lake water oftentimes produces "warmer, less 

dense oxygenated water floating on top of colder, dense, 

deoxygenated water," with seasonal variations, and uncontrolled 

releases could degrade "downstream" water. Accordingly, the 

permit mandates "[w]ater quality standards for dissolved oxygen 

and temperature shall not be violated by the [project]." An 

"intake tower . . . [with] multiple intake ports" draws from 

different lake levels to "control temperature" and reoxygenation 

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occurs "[a]s water falls . . . to the bottom of the spillway." 

Monitoring devices are required to demonstrate compliance, 

together with specified reporting requirements. 

 An "Environmental Assessment Report" (EA)5 prepared by the 

USDA Soil Conservation Service in response to the instant VWPP 

application concluded that "[f]isheries resources upstream of 

the pool area will not be affected" by the project and "will be 

improved in the pool and downstream," with minimum flow levels 

"to insure the integrity of the downstream . . . resource," and 

no increase in water temperature, resulting in "a significant 

downstream water quality benefit." While the project will "have 

an adverse impact on . . . terrestrial species . . . within the 

pool area[,] it will provide aquatic animals an expanded 

habitat." 

 Presently, increased water flow in Cedar Run during winter 

and spring permits canoeing in areas below the dam. The "white 

water" enhancement of such activity is dependent upon variable 

stream conditions and, clearly, canoeing is impossible during 

periods of little or no creek flow. The evidence before the 

SWCB suggests that creek flows would remain seasonably cyclical, 

subject to controls to avoid either the extremes of flood or 

 5

 Appellants' contention that the EA, which supplements an 

Environmental Impact Statement (EIS), not in evidence, prepared 

in 1975 in response to a very different proposal, is unreliable 

raises an issue of weight, not admissibility. We find the SWCB 

properly admitted the EA into evidence and considered related 

findings, conclusions and recommendations. 

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drought, conditions inconsistent with recreational use. The 

record does not support appellants' contention that post-project 

stream flows would eliminate canoeing. 

 Thus, the record, including documentary proofs and other 

evidence, clearly reflects a VWPP which protects existing 

instream uses, properly issued upon consideration of facts and 

circumstances before the SWCB. Although characteristics of 

Cedar Run within the immediate project area are altered, 

downstream water quality, habitat, fisheries resources and 

recreational opportunities are either preserved or enhanced.6 

Under such circumstances, the SWCB properly exercised statutory 

authority in issuance of the VWPP. 

 Next, appellants assert the instant VWPP improperly permits 

mitigation for wetlands destroyed by the project to occur in 

another watershed, thereby failing to "offset harm to water 

quality" within the impacted Cedar Run watershed and, further, 

approves a "[m]itigation concept," conditioned upon later 

submission of the requisite "final . . . plan for DEQ approval" 

in violation of 9 VAC 25-210-80(A)(2)(K). 

 In response to a "[m]itigation concept" submitted to the 

SWCB by Fauquier, a "SPECIAL CONDITION" of the VWPP requires 

 6

 Because existing instream beneficial uses were not 

improperly compromised by the VWPP, we decline to address 

appellants' subsidiary argument that the trial court 

"sacrificed" such uses to "accommodate . . . proposed offstream 

uses." 

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Fauquier "to mitigate for cumulative loss of 16 acres of 

wetlands by enhancing, creating and preserving wetlands on the 

100 acre plus wetland complex . . . owned by Fauquier" in 

another watershed. Details of the required mitigation are 

specified in the permit and a "final plan," developed in 

cooperation with the Natural Resources Conservation Service and 

the Corps, must be submitted "to DEQ for review and approval 

within twenty-four months of [the VWPP] issuance" date. 

 Code § 62.1-44.15:5(E) provides 

[w]hen a [VWPP] is conditioned upon 

compensatory mitigation for adverse impacts 

to wetlands, the applicant may satisfy all 

or part of such mitigation requirements by 

the purchase or use of credits from any 

[specified] wetlands mitigation bank . . . 

as long as: (1) the bank is in the same 

. . . river watershed[] as the impacted site 

. . . . 

9 VAC 25-210-90(C) requires a VWPP permittee "to provide 

mitigation of . . . adverse [wetland] impact on an in kind basis 

where impacts cannot be avoided." 

 Appellants advocate a construction of both the statute and 

rule inconsistent with the clear meaning of each. Code 

§ 62.1-44.15:5(E) expressly mandates wetland mitigation within 

the same watershed only when such mitigation is accomplished 

through "credits" purchased from a "mitigation bank," a 

circumstance not present on the instant record. Nothing 

suggests legislative intent to impose a like requirement on all 

mitigation plans. "Where a statute is unambiguous, the plain 

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meaning is to be accepted without resort to the rules of 

statutory interpretation." Last v. Va. State Bd. of Med., 14 

Va. App. 906, 910, 421 S.E.2d 201, 205 (1992). Similarly, a 

plain reading of 9 VAC 25-210-90(C) does not reflect an intent 

to confine mitigation to the watershed directly impacted by 

wetland loss, but, rather, simply that such wetlands be replaced 

"in kind," or by "similar" wetlands, without specifying 

location. See Black's Law Dictionary 1383 (6th ed. 1990). 

 Water quality issues indirectly related to wetlands 

destruction resulting from the project are subsumed in the 

mitigation considerations, while impacts immediately attendant 

to the activity are otherwise addressed by the SWCB review 

process. Here, the EA indicated "[t]he plan will have 

significant downstream water quality benefit," reducing 

sediment, turbidity and pollution, maintaining the existing 

"III-B" DEQ classification of "stream quality" and 

"complimentary to the on-going programs to improve the bay." 

 With respect to appellants' challenge to the sufficiency of 

the application, the adequacy of the "mitigation concept" 

initially submitted to SWCB was an issue governed by applicable 

regulations, to be determined in the exercise of the Board's 

sound discretion. See Va. Real Estate Bd. v. Clay, 9 Va. App. 

152, 159, 384 S.E.2d 622, 626 (1989) ("[T]he interpretation 

which an administrative agency gives its regulation must be 

accorded great deference and will not be set aside unless 

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arbitrary and capricious."). Thus, again, appellants have not 

demonstrated an error of law by the SWCB. 

 Lastly, appellants urge us to "vacate[]" the VWPP because 

the SWCB "failed to include enforcement mechanisms for . . . 

conditions" specified in the permit. However, review of the 

permit discloses numerous monitoring, reporting and notification 

directives included as "SPECIAL CONDITIONS." The SWCB is not 

required to specify monitoring procedures which VWPP applicants 

must adopt to warrant compliance with permit conditions. The 

SWCB is empowered to inspect and investigate "as . . . necessary 

to carry out the provisions" of State Water Control Law, Code 

§ 62.1-44.13, and pursue both civil and criminal penalties for 

violations, including noncompliance with VWPP certifications. 

See Code § 62.1-44.20 et seq. Thus, ample safeguards assure 

performance of conditions imposed on the instant permit, and 

otherwise by law, with respect to construction and operation of 

the project. 

 Accordingly, for the reasons stated, we affirm the trial 

court. 

 Affirmed.

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