Published by the Environmental Law Section of the Virginia State Bar for its members

Environmental Law News Volume XVII, No. 2 Spring 2006

Help for Troubled Wa-ters? New Legislation Addresses the Sources of Polluted Stormwater Runoff Joshua Dietz

Introduolluted stormwater runoff is one of the most important environmental issues facing the Commonwealth and the

nation. Although most people do not realize it, polluted stormwater runoff is the primary culprit be-hind the poor water quality that currently plagues our rivers, lakes, and the Chesapeake Bay. Unfor-tunately, as subdivisions and shopping malls continue to engulf the landscape, the effects of pol-luted stormwater will only worsen. Further, without a serious commitment to address the prob-lem from government and from the private sector, we can expect to see continuing declines in our water quality, which in turn will detrimentally impact the health of aquatic ecosystems, as well as the vitality of marine-dependent in-dustries.

ction

Fortunately, both Virginia and the federal government recently passed legislation designed to fos-

ter improved stormwater quality. Promulgated under the Clean Wa-ter Act, these new guidelines pro-vide local governments, industries, and other institutions with new mandates for controlling polluted stormwater runoff. Effec-tive implementation of these guidelines should lead to notice-able improvements in water qual-ity, which in turn will benefit the health of our lakes, rivers, and coastal waterways.

This article explains the stormwa-ter runoff issue and outlines the recent efforts by the Virginia leg-islature to address the problems

associated with stormwater pollu-tion. It begins with a brief discus-sion of stormwater pollution followed by a synopsis of the fed-eral and state legislation that ad-dresses the issue. The article then outlines the recent changes to the Virginia Stormwater Management Act and explains the implications of the new legislation. In conclu-sion, the article offers suggestions for practitioners and others who may be affected by the new legis-lation.

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Chair’s Corner

June Meeting I invite you all to attend the Virginia State Bar’s Annual Meeting at Virginia Beach in June. The meeting is an opportunity to visit with your colleagues and attend excellent CLE programs. This year, the Environmental Law Section is co-sponsoring an exciting program along with the Real Property and Local Government Sections of the Bar. We are presenting a CLE program starting at 11AM on Friday June 16, 2006, entitled “A Practitioner’s Guide to Debunking the Myths of Traditional Neighborhood Development.”

Traditional Neighborhood Developments, or TNDs, are hot these days: developers want to build them and people want to live in them. Our panel of speakers will explain why and discuss not only the development and zoning issues related to TNDs, but the envi-ronmental issues – both pro and con – of these projects.

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Joshua Dietz is a J.D. Candidate, May 2007, at the Washington and Lee University School of Law.

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Environmental Law News

Environmental Law News Volume XVII, No. 2, Spring 2006

Prepared by the staff of Environmental Law Digest

Washington and Lee University School of Law

Lexington, Virginia 24450 Editor-in-Chief Stephen Mealor

Executive Editor Taylor Menlove

Managing Editor Laura Fleischmann

Senior Articles Editor Michael Bourdaa

Senior Case Summary Editor Ryan Dunlavey

Legislative Editor Jason Reid

Articles Editor Ross Henry

Case Summary Editor Clint Carpenter

Staff Joshua Autry

Michael Bauer Allison Caldwell

Joshua Dietz Bridget Fay

Matthew Frisbee Erica Galusha

Shannon Goldsmith James Humphries Christopher Jones Garren Laymon

Seth Mott S. Christopher Mullins

Abigail Parolise Jennifer Rawls

Michael Schmitt Edward Standley

Brien Van Wagner Faculty Advisors

Professor Sean H. Donahue All statements, expressions, opinions or comments appearing herein are those of the by-lined authors or the editors and are not necessarily those of the State Bar or the Environmental Law Section.

From the Editor Maybe we should have named this issue the Wet Edition, but we did not plan for water to be the primary topic of this issue. Last summer, Marina Phillips, a partner at Kauffman & Canoles in Norfolk, sug-gested the topic of Joshua Dietz’s article on stormwater permitting. Third-year student Mary Cromer approached us last fall with her own idea for an article on fish kills. And, while Joshua and Mary were researching their articles, the Supreme Court announced it would be hearing the Rapanos/Carabell and S.D. Warren Clean Wa-ter Act cases, which are summarized herein. Thus, this confluence of water-related topics is coincidence, but one worth mentioning.

A correlation that is not so random is the behind-the-scenes coopera-tion between attorneys of the Virginia Bar and the law students at Washington and Lee University that produced this issue. We de-pended upon one another for insight and editorial suggestions. For instance, Marina Phillips did not merely suggest an article topic, but she also gave helpful advice on Joshua Dietz’s rough drafts. Simi-larly, Mary Cromer turned to Richard Parrish of the Southern Envi-ronmental Law Center for advice on her article. We students put a great deal of time and effort into the Environmental Law News, so we always appreciate input from those of you who know how we can better focus our energies to serve Virginia’s environmental practitio-ners and clients.

I hope that over the summer we can forge more student-attorney partnerships. If you have ideas for new articles, please contact the managing editor for next fall, Allison Caldwell (WLU ‘07), at caldwella@wlu.edu. She will put you in touch with students who will write on your topic or who can help edit an article you may be writing yourself. Thank you,

Steve Mealor Editor-in-Chief

Table of Contents Chair’s Corner ............................................................................................ 1Help for Troubled Waters? New Legislation Addresses the Sources of Polluted Stormwater Runoff.......................... 1From the Editor ........................................................................................... 2Request for Articles .................................................................................... 9Troubled Waters: Chronic, Systemic Fish Kills Plague the Shenandoah River Basin ......................................................... 9Case Digest................................................................................................ 14Federal and State Regulation ................................................................... 24

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Environmental Law News

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The Stormwater Problem The stormwater problem stems from our increasingly urbanized landscape. Pavement, sidewalks, and other impervious surfaces change natural hydrologic patterns and impede stormwater from natu-rally infiltrating the ground.1 With no opportunity to seep into the ground, the stormwater flows swiftly over the surface without filtering out pollutants. As a re-sult, storm events have greater impacts on local waterways due to increased stream flows, water temperatures, and discharges of sediments, nutrients, heavy met-als, pathogens, toxins, and float-ables.2 According to recent studies, polluted stormwater has seriously impacted approximately 40 percent of the nation’s lakes, rivers, estuaries, and coastal zones and has harmed aquatic life and numerous sources of drinking wa-ter.3 Unfortunately, as more farm-lands, meadows, and forests are transformed into malls and park-ing lots, the stormwater problem will only increase.

To address the stormwater pollu-tion problem, current legislation primarily seeks to regulate the municipal separate stormwater sewer systems (MS4s) that collect and channel stormwater runoff. An MS4 is any conveyance of stormwater owned and operated by a public entity.4 Such convey-ances include drainage ditches, pipes, collection ponds, roads, or any other mechanism used to catch and channel stormwater.5 Primarily, MS4s are owned and operated by federal, state, and lo-cal authorities, including munici-palities, associations, agencies, and universities.6 Like most water pollution legislation, the MS4 regulations seek to increase the

quality of the water discharged by limiting the quantity of pollutants in the effluent.

The Stormwater Legislation In 1987, Congress established a comprehensive national program for reducing polluted stormwater discharges by adding section 402(p) to the Clean Water Act (CWA).7 Specifically, section 402(p) directs the EPA to promul-gate regulations for stormwater discharges in two phases, with the

ultimate goal of requiring Na-tional Pollution Discharge Elimi-nation System (NPDES) permits for most stormwater discharges.8 The Phase I regulations, enacted in 1990, required NPDES permits for stormwater discharges associ-ated with industrial sources, con-struction disturbing over five acres, and large MS4s serving lo-calities with populations greater than 100,000 people.9 Essentially, the Phase I regulations were de-signed to address stormwater dis-charges from very large sources

Speakers will include Joe Barnes (Director of Design and Architecture, Celebration Associates, LLC), Dan Slone (Partner, McGuireWoods LLP), Trip Pollard (Director, Land and Community Project, Southern Environmental Law Center), and Howard Gordon (Partner, Williams Mullen Hofheimer Nusbaum). Sterling Rives, County Attorney for Hanover County, will moderate the panel discussion.

We will hold a short annual meeting immediately after the CLE pro-gram. I hope that you will attend.

New Board Members and Officers The Board of Governors established up a Nominating Committee to propose new Board of Governors members and officers for next year. Kelley Kline and I are the members of this Committee. The Committee is tasked with proposing nominations to fill the four upcoming vacan-cies on the Board and putting together a slate of officers for 2006-2007. If you have suggestions for new Board of Governors members or offi-cers, please email or call either Kelley or me.

Option to Receive Electronic Newsletter In the past, we have offered a hard copy version of the newsletter to Section members, and posted the latest version of the newsletter on the Section website. If you would prefer to receive the newsletter by elec-tronic means only rather that receiving a hard copy, we can now ac-commodate that request. Please fax Catherine Whitehead at the Bar (804-775-0501) with your signed request to receive the newsletter elec-tronically rather than in hard copy along with the email address to which you would like us to send the newsletter.

Heather StevensonChair

Chair’s Corner continued from page 1

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Environmental Law News and required these sources to im-plement stormwater pollution pre-vention plans to limit pollutant discharges and reduce erosion and sedimentation.

The Phase II regulations, which went into effect in 1999, extend the Phase I regulatory scheme to small MS4s serving populations of less than 100,000 and to small construction sites disturbing be-tween one and five acres.10 The Phase II requirements, however, are not necessarily based on popu-lation and can extend to other MS4s not regulated by Phase I, including MS4s owned and oper-ated by universities, military in-stallations, and hospitals.11 Still, the requirements for Phase II are very similar to the Phase I re-quirements and are designed to address stormwater discharges from the remaining sources of stormwater pollution not covered under Phase I.

The Phase II rules can be divided into three main components relat-ing to (1) regulated MS4s, (2) construction activities, and (3) industrial activities.12 For all com-ponents, the rules follow a flexible “performance-based” regulatory approach that allows for multiple methods of pollution control without strictly focusing on efflu-ent discharges or end-of-pipe treatment.13 In many respects, the flexibility built into the program is a very effective method of regula-tion because it allows municipali-ties and other operators to develop stormwater management plans that meet local needs and condi-tions.

Regulated MS4s Under the Phase II requirements, small MS4s are automatically regulated if they serve populations of less than 100,000 people and are located within an urbanized area as defined by the latest cen-

sus. This primarily includes MS4s operated by small municipalities, universities, prisons, hospitals, and military installations located within the boundaries of the ur-banized area.14 Only those por-tions of the MS4 within the urbanized area boundary are sub-ject to regulation; if part of the MS4 is located outside of the ur-banized area that part is ex-cluded.15 Additionally, once the small MS4 has been regulated it remains subject to regulation re-gardless of whether it subse-quently falls outside of an urbanized area in a later census. Thus, automatically regulated MS4s will be regulated unless or until they meet the criteria for waiver.16

Additionally, small MS4s not automatically regulated can be designated under Phase II by the NPDES issuing authority.17 When determining which small MS4s should be included in the Phase II regulation, the NPDES issuing authority looks to the impacts of the MS4. Specifically, a small MS4 can be designated for regula-tion based on its proximity to sen-sitive waters, on its population density, on its population growth potential, on its proximity to an urbanized area, or by determining whether it is a significant con-tributor to water pollution.18 If a small MS4 outside an urbanized area fits any of these criteria, the EPA or the NPDES issuing au-thority can regulate the MS4 un-der Phase II.19

Waivers are available for small MS4s in urbanized areas serving less than 1,000 people and for small MS4s in urbanized areas serving less than 10,000 people.20 These MS4s may obtain a waiver from MS4 regulation by showing that they are not substantially con-tributing to pollution loads of im-

paired bodies of waters or to regulated MS4s and there is minimal chance that the small MS4 will substantially contribute to pollution loads in the future.21

The Phase II regulations require the MS4 operator to develop a stormwater management plan that incorporates six measures to re-duce the impact of stormwater runoff. Specifically, the operator must develop programs for public education and outreach and obtain public involvement and participa-tion to reduce pollutant loads.22 Additionally, the operator must create a system for detecting and eliminating illicit discharges. Fi-nally, the operator must also con-trol construction and post-construction runoff, and develop best management practices to pre-vent pollution and limit uncon-trolled municipal discharges.23

Construction Activities In addition to MS4s, the Phase II requirements also regulate small construction activities disturbing between one and five acres.24 Pre-viously, under Phase I, large con-struction activities disturbing greater than five acres were re-quired to obtain an NPDES permit to regulate their discharges. Addi-tionally, small construction activi-ties were also required to have permits if they were part of a lar-ger construction plan.25 Thus, small construction disturbances that occurred adjacent to or as part of a larger development were also required to have permits.

With the promulgation of the Phase II regulations, all small construction activities that disturb between one and five acres must have an NPDES permit, unless they qualify for a waiver.26 Addi-tionally, construction activities that disturb less than one acre may also need an NPDES permit if they are part of a larger plan or

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Environmental Law News development or if the NPDES is-suing authority requires a permit. A small construction activity dis-turbing less than one acre will be required to have an NPDES per-mit if the issuing authority deter-mines that the construction activity will significantly contrib-ute to pollutant loads.27

To qualify for a waiver, the small construction site must meet one of two criteria. First, a waiver may be granted if there is low pre-dicted rainfall potential. Thus, if it is highly unlikely that any signifi-cant rainfall will occur while the construction is ongoing, the pro-ject may qualify for a waiver. This provision is designed to encourage construction during dry parts of the year.28

A waiver may also be granted based on analysis of criteria pol-lutants and the construction activ-ity’s potential for contributing to poor water quality. Specifically, a waiver may be granted if analysis of local bodies of water show that the construction will not signifi-cantly contribute to the total maximum daily loads (TMDL) of criteria pollutants to impaired bodies of water.29 Additionally, a waiver may also be granted if analysis of non-impaired bodies of water shows that the construction will not significantly impact the quality of the non-impaired water. The purpose of these waivers is to exempt from regulation only those sites that are highly unlikely to contribute to water pollution.30

Industrial Activity

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For industrial activity, the Phase II requirements are essentially a re-publishing of the Phase I require-ments. As most industry will have already complied with the Phase I requirements, there should be little need to modify existing industrial stormwater plans to bring them into compliance with Phase II.

However, there is one primary difference between Phase I and Phase II concerning the No Expo-sure Exclusion.31

Phase II adds a more clearly de-fined No Exposure Exclusion. Previously, the Phase I regulations simply exempted from NPDES regulation those light industries that were not exposed to stormwa-ter. In 1992, however, litigation forced the EPA to more clearly define the exemption. According to the Ninth Circuit, the EPA’s exemption was too vague and con-trary to its congressional man-date.32 With Phase II, the EPA has created a better defined and more appropriate No Exposure Exclu-sion.

The Phase II No Exposure Exclu-sion is designed to simplify per-mitting requirements for those industries that conduct their busi-ness entirely indoors. An industry is eligible for the No Exposure Exclusion if it can show that no part of its industrial activity is ex-posed to stormwater. If an indus-try can show no exposure and maintains no exposure, then it does not need an NPDES per-mit.33 Essentially, the idea behind the No Exposure Exclusion is to exempt those industries that will have no impact on water quality based on their lack of exposure to storm events.

The Virginia Stormwater Management Program In Virginia, stormwater manage-ment is governed by the Virginia Stormwater Management Act. First passed in 1990, the VSMA was the Commonwealth’s first attempt at implementing the stormwater regulations promul-gated under section 402(p). The regulations enacted under the 1990 VSMA closely follow the Phase I guidelines set forth by

EPA and have generally been ef-fective at reducing stormwater runoff pollution.34 In general, un-der the 1990 VSMA, large and medium size municipalities, in-cluding localities such as Fairfax, Norfolk, Arlington, and Newport News, were required to develop stormwater management pro-grams. Smaller localities could implement programs at their dis-cretion. As of 2004, 21 Virginia localities have implemented stormwater management plans pursuant to the 1990 VSMA. Re-views of these plans have shown that stormwater runoff has been substantially reduced in these ar-eas.35

Although Virginia has been suc-cessful at reducing stormwater runoff, the regulatory scheme im-posed by the 1990 VSMA proved cumbersome. With the promulga-tion of the Phase II regulations in 1999, it became clear that the VSMA needed revision. Specifi-cally, the 1990 legislation em-powered three separate state agencies, the Department of Con-servation and Recreation (DCR), the Department of Environmental Quality (DEQ), and the Chesa-peake Bay Local Assistance De-partment (CBLAD), to manage stormwater runoff permitting.36 While these agencies worked closely to reduce redundancy, the overlap caused confusion within the regulated community and with local governments. Additionally, the legislation was problematic because of the patchwork of stormwater management programs in place around the state. While all of Virginia’s larger localities have stormwater management plans, more than half of Virginia’s cities and counties have no plan at all.37 Such inconsistency created uni-formity issues that made regula-

Environmental Law News tion on the statewide level diffi-cult.38

To address these problems, in 2004 the Virginia legislature passed House Bill 1177 (HB1177), which amends the VSMA.39 Following recommen-dations offered by the DCR, DEQ, and CBLAD, the bill consolidates stormwater permitting in the DCR’s Virginia Soil and Water Conservation Board (VSWCB) and establishes a state-wide ap-proach to stormwater manage-ment. The bill also enables the Phase II regulations promulgated by the EPA in 1999.40 When fully implemented, the 2004 VSMA will significantly reduce stormwa-ter pollution by ensuring that all localities are paying attention to stormwater issues.41 The new stormwater management program is expected to prevent 972,000 tons of sediment, 466,000 pounds of phosphorous, and 710,000 pounds of nitrogen from entering Virginia’s waterways annually.42

These changes to the VSMA streamline stormwater manage-ment by consolidating the regula-tion process in the DCR and by implementing statewide provi-sions that ensure uniformity in local stormwater management.43 Additionally, the new VSMA bet-ter accomplishes the goal of limit-ing the amount of polluted stormwater because it regulates every locality and every major construction project. The primary mechanisms through which the VSMA regulates are by (1) regu-lation of MS4s and (2) regulation of construction activities.

The new VSMA places stricter regulations on MS4s by requiring all MS4s designated under the federal Clean Water Act to de-velop a stormwater management program. This includes large, me-dium, and small MS4s. Addition-

ally, all localities in the Tidewater region are required to develop stormwater management pro-grams, while all other localities not designated MS4s or not lo-cated in the Tidewater region may choose to develop stormwater management programs at their discretion. The DCR will imple-ment any stormwater management for those localities that choose not to participate.44

Construction activities are also regulated under the new VSMA. All construction activities, includ-ing activities undertaken by state agencies, must have a stormwater permit if the construction disturbs one acre or greater. In areas pro-tected under the Chesapeake Bay Preservation Act, all construction activities that disturb 2,500 sq. ft. or greater of land require a stormwater permit. Exceptions to this rule include land disturbing activities associated with mining, agricultural use, routine mainte-nance, and construction of a single home or an addition to a home.45

As in the 1990 VSMA, the 2004 version allows approved localities to assume the duties of stormwater permitting and management, in-cluding requiring permit fees. The 2004 act, however, establishes a statewide permit fee schedule that establishes a uniform permit fee. Revenue collected from the permit fees is deposited into the newly formed Virginia Stormwater Man-agement Fund, which is used to pay for administrating stormwater programs. Localities that manage their own stormwater programs get to keep up to 70 percent of the fees for their own use, which gives localities an incentive to manage their own program.46

To encourage better compliance, the penalties for violating the VSMA have been significantly increased under the 2004 legisla-

tion. Any violation can now result in a fine of up to $25,000, while negligent violations can result in the fine and jail time of up to 12 months. Additionally, knowingly violating the VSMA is now a fel-ony punishable by 1 to 3 years in prison and a fine between $5,000 and $50,000 for each violation.47 These penalties are much stricter than the original VSMA, which only authorized fines of up to $2,000 for each violation and/or up to 30 days in jail.48

Generally speaking, localities have responded favorably to the new legislation and are working to implement stormwater manage-ment programs. DCR reports that already there is better compliance than even a year ago.49 Still, be-cause of the magnitude of the un-dertaking, many localities are having difficulty implementing programs and may need more time to put their plans in place. Be-cause of this, there had been some talk of passing new legislation that would push back the July 2006 deadline for localities to have their systems in place.50

Suggestions for Practitioners and Others Affected by the Phase II Regulations The EPA and Virginia’s DCR have made stormwater manage-ment a primary water pollution control priority and have begun to strenuously enforce stormwater regulations to ensure compliance and to protect the quality of re-ceiving bodies of water.51 How-ever, due to lack of knowledge of the problem and lack of knowl-edge of the new regulations, viola-tions are rampant and the agencies have had little difficulty in dis-covery many examples of non-compliance. As the penalties for noncompliance can be severe, those municipal, industrial, and

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Environmental Law News construction activities that affect stormwater quality must become acutely aware of their stormwater obligations and make every effort to avoid violations.

Many operations have difficulty in complying with regulations sim-ply due to the volume of obliga-tions placed on them. Moreover, even if an operation does properly obtain a permit, it may still have difficulty complying with the ad-ditional requirements mandated by the permit itself. Common faults include failure to properly main-tain records, failure to develop a Stormwater Pollution Prevention Plan as required by the permit, and failure to inspect and repair erosion and sediment control measures after a storm.52 Indeed, there are so many details and ob-ligations under the stormwater regulations that violations are common and even expected.

In spite of the burden that the nu-merous regulations place on mu-nicipalities, construction activities, and industry, the EPA hopes to reduce violations by of-fering incentives to promote com-pliance.53 For example, EPA conducts both announced and ran-dom inspections of facilities to monitor compliance and to inspect records and facility operations. Additionally, EPA encourages facilities to conduct self-inspections and environmental audits to discover and correct vio-lations without government inter-vention.54 Under the EPA audit policy, a regulated entity can avoid or reduce civil and criminal penalties for violations if it meets all or some of nine conditions.55 Specifically, a stormwater violator can avoid or reduce penalties if (1) there was systematic discovery of the violation through an envi-ronmental audit or compliance management system, (2) there was

voluntary discovery, (3) there was prompt disclosure of the violation, (4) the discovery and disclosure were independent of a government or third-party plaintiff, (5) the vio-lation was corrected, (6) actions were taken to prevent a recurrence of the problem, (7) there have been no repeat violations, (8) the violations did not result in endan-germent or serious actual harm to the environment or the public health, and (9) the regulated entity cooperated with EPA and other regulating agencies.56 If all of these requirements are met, EPA likely will dismiss the civil and/or criminal penalties. If only some of these requirements are met, EPA may reduce penalties.57

Thus, to avoid the penalties asso-ciated with stormwater violations, municipalities, construction activi-ties, and industry need to pay careful attention to their stormwa-ter compliance. They must follow the regulations closely and work strenuously to ensure that their operations meet the standards set forth by the federal and state regu-lating authorities. Additionally, these regulated entities must make every effort to monitor their own compliance and report violations in order to reduce or avoid penal-ties. Such positive action will greatly enhance the effectiveness of the stormwater management program and will reduce costs for the operators.

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Conclusion Stormwater pollution is a serious threat to the integrity of our na-tion’s waterways that requires strong public and private action to remedy. Unfortunately, the diffuse nature of the problem makes it difficult to address, which means that in spite of our best efforts, it likely will remain a problem, if only on a smaller scale. Still, im-provement in the quality of our

nation’s waterways is an impor-tant goal that we should not ne-glect. Although the task seems daunting, the new guidelines pre-sented by the state and federal governments offer an opportunity to better address the problem. It is not enough, however, to simply pay lip service to the new rules. Rather, effective implementation of the Phase II guidelines coupled with a serious commitment to up-hold the new standards is the best way to ensure that improvements occur. This means that every regu-lated entity, both private and pub-lic, needs to make stormwater management a priority. Only then will we see real change in the health and beauty of our troubled waters.

1 Stacy D. Harrop, Municipal Separate Storm Sewer Systems: Is Compliance with State Water Quality Standards Only a Pipe Dream?, 31 ENVTL. L. 767, 769 (2001). 2 Id. at 768-771. 3 Storm Water Phase II Compliance Assistance Guide, § 2.0 (2000), avail-able at http://www.epa.gov/npdes/ pubs/comguide.pdf (last modified March 2000) [hereinafter Compliance Assistance Guide]. 4 Permit Applications and Special NPDES Program Requirements, 40 C.F.R. § 122.26(b)(8), (2005). 5 Id. 6 Id. 7 33 U.S.C. § 1342(p) (2005). 8 Id. 9 33 U.S.C. § 1342(p)(4)(A) (2005). 10 33 U.S.C. § 1342(p)(4)(B) (2005). 11 Compliance Assistance Guide, su-pra note 3, § 4.1. 12 Id. at § 3.1. 13 Harrop, supra note 1, at 781-785. 14 Compliance Assistance Guide, supra note 3, § 4.2. 15 Id. at § 4.2.2.1. 16 Id. 17 Id. at § 4.2.2.2. 18 Id.

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19 Id. 20 Id. at § 4.4. 21 Id. 22 Id. at § 4.6.2.1. 23 Id. 24 Id. at § 5.1.1. 25 Id. 26 Id. 27 Id. 28 Id. § 5.2. 29 Id. 30 Id. 31 Id. at § 6.1. 32 see NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992). 33 Compliance Assistance Guide, su-pra note 3, § 6.2. 34 Rpt. of the Dept. of Conservation and Recreation to the Gen. Assembly of Va., Report of the Review and Evaluation of Local Stormwater Man-agement Programs, 2 (Apr. 2005) available at http://leg2.state.va.us/ dls/h&sdocs.nsf/By+Year/RD1282005/$file/RD128.pdf (last modified April 2005) [hereinafter Local Stormwater Report]. 35 Id. at 2-3. 36 Id. at 3. 37 E-mail from L. Preston Bryant, Del. 23rd Dist. of Va., to Joshua Dietz, au-thor, Wash. and Lee Univ. Sch. of L., (Nov. 28, 2005) (on file with author). 38 Local Stormwater Report, supra note 34, at 3. 39 See 2004 Va. Acts ch. 372. 40 Id. 41 E-mail from L. Preston Bryant, supra note 37. 42 Local Stormwater Report, supra note 34, at 4. 43 see VA. CODE ANN. § 10.1-603.2 (2005).

44 see VA. CODE ANN. § 10.1-603.3 (2005). 45 see VA. CODE ANN. § 10.1-603.8 (2005). 46 see VA. CODE ANN. § 10.1-603.4 (2005). 47 see VA. CODE ANN. § 10.1-603.14 (2005). 48 See VA. CODE ANN. § 10.1-603.14 (1990). 49 E-mail from L. Preston Bryant, Del. 23rd Dist. of Va. To Joshua Dietz, au-thor, Wash. and Lee Univ. Sch. of L., (Nov. 29, 2005) (on file with author). 50 Id. 51 Clean Water Act National Enforce-ment Priorities, available at http://www.epa.gov/compliance/civil/cwa/cwaenfpriority.html (last modified April 12, 2005). 52 Compliance Assistance Guide, su-pra note 3, ch. 7.1. 53 Id. 54 Id. 55 EPA’s Auditing Policy, available at http://www.epa.gov/compliance/incentives/auditing/auditpolicy.html (last modified June 2, 2005). 56 Id. 57 Id.

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Request for Articles

The articles in this newsletter are intended to provide analysis and discussion of topics that may interest attorneys who practice in the areas of environmental law. The Environmental Law Digest welcomes submissions of appro-priate articles. Suggestions of topics for articles and other comments are also welcomed. Please send any submis-sions or comments to the Environmental Law Digest at:

Environmental Law Digest Washington and Lee University

School of Law Lexington, Virginia 24450

or by e-mail at: caldwella@wlu.edu.

Troubled Waters: Chronic, Systemic Fish Kills Plague the Shenandoah River Basin Mary Varson Cromer

he Shenandoah River sys-tem and the upper Potomac River are in trouble.1 Over

the past four years systemic fish kills have devastated the small-mouth bass and redbreast sunfish populations in the South Branch of the Potomac River and the North Fork, mainstem, and South Fork branches of the Shenandoah River. State and federal scientists looking into the kills have not been able to determine a cause. To call this series of fish kills a devastating event is not hyper-bole. Virginia Department of Game and Inland Fisheries biolo-gist Steve Reeser estimates that in the most recent fish kill from April to July of 2005, eighty per-cent of the adult smallmouth bass and redbreast sunfish popula-tions2 in 100 miles of the South Fork and mainstem Shenandoah River were destroyed. The effect was immediate and severe for Shenandoah Valley fishing guide Bob Cramer. After stating that he

lost half of his yearly income from the 2005 fish kill, Mr. Cramer lamented that “I am going to make a living somehow. But some kid is not going to be able to go down there and catch fish. That’s a disgrace.”3

Chronic, Systemic Fish Kills It is not merely the extent and effects of these kills that are so alarming. These have not been typical fish kills for a variety of reasons. First, it is unusual that young fish seem not to have been affected. It appears that only fish that had reached sexual maturity were killed. The primary hy-pothesis to account for this dis-parity relates to the fact that the kills occurred during the height of spawning season when sexually mature fish undergo a great deal of stress from the energy required to migrate and create, fan, and guard nests. Spawning stress combined with the other unknown cause or causes may have further weakened the fish, making them susceptible to the bacterial infec-tions that caused the lesions.

Second, the sequential nature of the kills is unusual. The three kills occurred over four years and moved from west to east along

the upper reaches of the Potomac River system. In each year of the kills, spring rains brought in-creased flow and turbidity to the rivers, the rivers underwent rapid temperature fluctuations, lesions began to appear on the fish, and many of the fish died. According to Steve Reeser, the kills are ex-tremely similar in that they oc-curred at the same time of year and for the same duration and had the same impact on the same spe-cies.4 To an extent, this “same-ness” is endemic of this river system, its climate, and its land use patterns. While these type of similarities account for the similar effects that these fish suffered, they cannot account for the cause of the kills in this river system; otherwise, kills would have oc-curred each year in the past. The similarity of these kills combined with their progression within this river system would seem to sug-gest a disease vector is at work. Studies to date, however, have shown no signs of disease or harmful parasite.5 While it has been determined that the fish in the most recent kill ultimately died because of the lesions, VDGIF classified the lesions as a secondary effect. The primary

T

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cause has been named as an “uni-dentified stressor” that weakened the fish, making them prone to infection by opportunistic bacte-ria naturally present in the water.6

The factor that makes these kills most troubling and potentially most difficult to remedy is the lack of an identifiable cause. Fish kills that are caused by pollution spills are usually acute, are con-fined to the spill area and down-stream and generally affect species indiscriminately. They are often devastating, but the remedy is there waiting to be enacted—clean up the pollution and prevent it from happening again. But these three fish kills do not follow that pattern, and water quality studies of the spills have not shown toxic levels of any chemi-cal agents.7 In this case, investi-gations by the West Virginia Department of Environmental Protection, the Virginia Depart-ment of Environmental Quality (DEQ), the Virginia Department of Game and Inland Fisheries (VDGIF), and the United States Geological Survey (USGS) have failed to determine a single causa-tive agent. The complexity of any ecosystem makes it difficult to determine the cause of chronic and persistent upset, especially when no known disease agent or new bacterial infection can be found. It is possible that there is no single cause, but rather a com-bination of causes, which com-bine to create an unhealthy environment conducive to fish mortality.

Finding a Cause or Causes for These Fish Kills The numerous studies performed have, however, underscored a number of problems with the health of this river system. Stud-ies conducted by the VDGIF and

the DEQ during the 2005 fish kill determined that the most likely cause was a combination of natu-ral environmental factors (e.g., fluctuating water levels and tem-perature) and water quality issues associated with excess nutrients in the water.8 Excess nutrients run into the rivers from a variety of sources, including agriculture, impermeable land surfaces, sew-age systems, and municipal waste treatment systems. Spring rains during spawning season contrib-ute to the problem by washing additional nutrients into the riv-ers. Excess nutrients, particularly phosphorus and nitrogen, feed algal blooms that diminish the available dissolved oxygen in the water and release un-ionized am-monia as they decompose. The lack of dissolved oxygen and the presence of un-ionized ammonia in the water create stress. Algal blooms also block sunlight needed by underwater plants for photosynthesis.

There is a sense of urgency within the Virginia agencies responding to this problem. In July 2005, the Virginia DEQ and VDGIF formed a Fish Kill Task Force to provide for ongoing investiga-tions and public involvement. The task force asked the Virginia leg-islature for $515,000 to conduct water quality monitoring (for lev-els of dissolved oxygen, tempera-ture, pH, dissolved ammonia, NO2, NO3, phosphorus and ortho-phosphorus) and fish health stud-ies in 2006. The request expendi-ture was comprised of a $59,000 request for storm event runoff monitoring to be conducted by the DEQ at nine sites, a $400,000 request for real-time monitoring at five sites to be conducted by the USGS, a $50,000 request for fish health studies to be con-ducted by the USGS to analyze

the potential effects of immune suppression and chronic stress on these fish, and $6,000 for body-burden studies to be conducted by the DEQ if the USGS studies show evidence of need. The histo-logical work done by the USGS would attempt to determine a baseline biological stress level for the fish and look for biomarkers of trace contaminants, possible biological changes from undis-covered viral infections, and indi-cators of abnormal sexual development in these fish. As of late December, the proposed state budget included only $200,000 of that $515,000 request.9 Unless other funding sources are found, the USGS real-time water quality monitoring will have to be scaled back or scrapped altogether.

Intersex Fish Discovered in Conjunction with the South Branch Fish Kill Excess nutrients in the water is not the only problem brought out by the studies of the fish kills. A July 2003 histological study by the USGS of fish in the South Branch of the Potomac River and in the Lost River in West Virginia found extremely high rates of in-tersex male smallmouth bass. De-veloping eggs were found in the testes of these male fish. The study found intersex prevalence rates as high as 80%.10 Studies conducted at the same locations in 2004 found the intersex phe-nomenon among both smallmouth and largemouth bass.11 Intersex conditions are believed to be caused by endocrine disrupting pollutants. These emerging con-taminants are difficult to detect in water quality sampling because they can be present at extremely low levels. In addition, trace amounts can have cumulative or synergistic effects that we are only just beginning to understand.

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No relationship between the fish kills in West Virginia and the in-tersex condition of many of the same species has been deter-mined.12 It is also not known if the conditions found in West Vir-ginia are localized or widespread. Specifically, it has not yet been determined if the intersex condi-tion exists in the Shenandoah River. Results of USGS histo-logical studies on fish collected in the Shenandoah River system are expected in early 2006.13

Controlling Nutrient Run-Off in the Shenandoah River System If it can be agreed the nutrient loading is at least partially re-sponsible for this series of fish kills, then efforts should be made to determine where the nutrients come from and how they can be reduced. Despite the lack of clear causation, despite the puzzling, chronic nature of these fish kills and the uncertainty of their link to bigger problems, the state should act out of a sense of caution based on what is known. Something is wrong in this watershed. There may not be enough information yet for scientific proof of a cause, but there is ample evidence of factors that degrade the water quality.

Nutrients are a key factor. But stating that excess nutrients are responsible for poor water quality leading to poor fish health is more a description of the problem than a statement of cause. Excess nu-trients have been a known prob-lem in this watershed for many years.

Where do these nutrients come from? While we know that nutri-ents can come from many sources and from almost any land use ac-tivity, the land-use patterns in the

Shenandoah watershed are all that concern us here. These land-use patterns indicate that agricultural activity may be allowing runoff of nutrients and chemicals that act as environmental stressors. The DEQ notes that the watersheds involved in all three fish kills are heavily agricultural and all are dominated by poultry farming.14 What can be done to help reduce nutrient pollution flowing from these agricultural lands? Nutrient discharges from farmland come in the form of both point-source and non–point-source runoff, and any plan that the state implements should address both.

Some large-scale agricultural ac-tivities in the Shenandoah Valley are considered point-sources that are regulated by and require per-mits from the DEQ.15 There are, however, different permits for poultry operations and other spe-cies. Poultry farms with 20,000 or more chickens or 11,000 or more turkeys are considered Con-centrated Animal Feeding Opera-tions (CAFOs) and are required to have a general permit covering potential discharges (though technically, they are “non-discharge permits”). The permit establishes storage and disposal criteria and tracking of poultry waste and establishes self-monitoring requirements.16 Per-mittees are also required to com-ply with nutrient management plans, which include the Depart-ment of Conservation and Recrea-tion’s (DCR) new stricter phosphorus application rates for approved nutrient management plans (NMP).17

The stricter phosphorus require-ments are important to control nutrient pollution for application of poultry litter as fertilizer in

fields. Poultry litter generally contains more of the needed phosphorus than nitrogen. Farm-ers in counties with large poultry operations are therefore economi-cally encouraged to over-apply this cheap and abundant fertilizer to meet their fields’ demands for nitrogen, resulting in an excess of phosphorus.18 By limiting phos-phorus application rates, the new regulations seek to control the runoff of both nutrients.

However, the NMPs are not man-datory for non-CAFO farmers who apply the poultry litter to their fields. Neighboring farmers who apply the free or inexpensive litter created by CAFO poultry farms are not covered under the general permit regulations. Run-off from those farms is consid-ered non–point-source pollution and is controlled only by volun-tary agreements between the farmers and the DCR.

In fact, most of the nutrient runoff in this watershed comes from non–point sources. Almost eighty percent of phosphorus and sixty-six percent of nitrogen in the Shenandoah-Potomac watershed comes from non–point-source pollution.19 Most regulatory con-trol of non–point-source pollution is voluntary and financed by state or federal funds.20 In Virginia, non–point-source pollution is un-der the authority of the DCR’s Soil and Water Conservation Board (SWCB). The SWCB de-velops regulatory guidelines for agricultural best management practices (BMP) and NMPs. These guidelines are not enforce-able on own but rather must be enacted by regulations by another state agency.

The SWCB guidelines are effec-tuated through programs that pro-

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vide financial incentives for farmers to adopt and maintain BMPs and NMPs. The Depart-ment of Conservation and Recrea-tion also administers grant funding and technical assistance through the Virginia Water Qual-ity Improvement Fund (WQIF).21 The money is used to get farmers to implement BMPs and NMPs through cost-share programs. For example, in 2003, The DCR used WQIF money to implement a cost-share program to fund the exportation of poultry litter from the two poultry industry intensive counties in the Shenandoah Val-ley to other counties.22 The pro-gram lasted only one year because of a lack of funds. At a minimum, it is clear that cost-share programs like this are needed to offset the economic incentives that farmers have to overuse the cheap and over-abundant fertilizer available to them in the Shenandoah Val-ley.

Funding Incentives to Control Non–Point Source Discharges Since we are virtually certain that non-point source nutrient runoff is a large factor in this series of fish kills, more money should be provided to fund programs that require or give incentives to Shenandoah Valley farmers to use NMPs and agricultural BMPs.

In the same budget proposal that contained over the $200,000 for monitoring and study efforts for these fish kills, Governor Warner proposed and the General Assem-bly approved over $260 million for Chesapeake Bay clean-up ef-forts, with most of the money go-ing toward improving municipal waste treatment facilities along the James and York Rivers and the Shenandoah River and the Potomac River and on the Eastern

Shore.23 The proposal estimates that the clean-up will move Vir-ginia two-thirds of the way to reaching its commitment to re-ducing nutrient levels of waters discharging into the Bay to the extent that would allow the Bay to be removed from the Clean Water Act’s list of impaired wa-ters by 2010.24 The money will also help cities meet the new mu-nicipal sewage treatment plant nitrogen and phosphorus dis-charge regulations promulgated by the State Water Control Board.25

The budget allocation focuses primarily on point-source clean up. This clean up is extremely important in helping restore the health of the Chesapeake Bay. Virginia is under the gun to meet its clean up commitment by 2010, and controlling point source dis-charge is the most effective way of doing that quickly. That money should not be reallocated.

The Governor’s proposed budget also includes around $40 million to assist farmers in lowering non-point–source runoff.26 While these investments in Bay clean up are laudable, they are not enough. If it is going to do its part under the Chesapeake Bay Agreement and address the urgent nutrient pollution problems in the Shen-andoah River, Virginia’s budget must include dedicated funding for both point-source and non–point-source pollution control. Virginia legislators must realize the urgency of the problem in the Shenandoah River and commit additional funds toward address-ing it. More funding needs to be given to the DCR to shore up ex-isting cost-share programs and create new programs that make it profitable for farmers to manage

their land in ways that protect the Valley’s watershed.

Virginia spends less than one per-cent of its budget each year to address environmental concerns. We are at or near the bottom in comparison with all other states for such expenditures.27 While it is good that money is being pro-posed to address water quality issues in the state, it is not enough, especially when the pro-posed budget barely acknowl-edges a critical problem like these fish kills.

1 These two river systems converge at Harpers Ferry, West Virginia and form the mainstem of the Potomac River, which flows to the Chesapeake Bay. 2 The redbreast sunfish and the smallmouth bass are the most com-mon fish in the Shenandoah River system. Largemouth bass and green sunfish have also been affected. 3 Lee Graves, Shenandoah River Fish Kills Have Attention, Need Ac-tion, RICHMOND TIMES-DISPATCH, Oct. 28, 2005, at E5. 4 Email from Stephen J. Reeser, Dis-trict Fisheries Biologist, Virginia De-partment of Game and Inland Fisheries (Dec. 9, 2005) (on file with author). 5 The Virginia Department of Envi-ronmental Quality, DEQ Summary of Fish Death Investigation for South Fork Shenandoah River, http://www.deq.state.va.us/info/srfishkill.html (last updated Aug. 25, 2005). 6 Press Release, Virginia Department of Game and Inland Fisheries, Shen-andoah River Fish Kill Investigation Update (July 25, 2005) at http://www.dgif.virginia.gov/newsroom/news.asp?id=58. 7 Shenandoah River Fish Kill: Causes and Investigations, The Source, (Nov. 2005), at 1, available at http://www.purewaterforum.org/2005_nov_thesource.pdf; Stephen J. Reeser, North Fork Shenandoah River Fish Kill Investigation 2004, at 2, available at www.fnfsr.org/ DGIF.htm; Investigating Fish Kills,

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Cacapon, March 2004, at http://www.cacaponinstitute.org/PHSWR%20Bookshelf/fish_kills.htm/. 8 Id; see also Dr. Stephen Smith, Pro-fessor of Aquatic Medicine/Fish Health, Virginia Tech Report on South Fork Shenandoah Fish Deaths (May 13, 2005), at http:// www.deq.state.va.us/info/ documents/VTfishkillreport.pdf. 9 Sue Lindsey, Group Fights for Fish Kill Studies, RICHMOND TIMES-DISPATCH, Dec. 27, 2005, available at http://www.timesdispatch.com/servlet/Satellite?pagename=RTD/MGArticle /RTD_BasicArticle&c=MGArticle&cid =1128768937900. 10 Press Release, West Virginia De-partment of Environmental Quality (Mar. 21, 2005), http://www.wvdep. org/Docs/8192_Press%20Release %20Final.pdf. 11 Id. 12 Id. 13 Email from Stephen J. Reeser, District Fisheries Biologist, Virginia Department of Game and Inland Fisheries (Dec. 9, 2005) (on file with author). 14 Virginia Department of Environ-mental Quality, supra note 6. Almost forty percent of the land in the Shen-andoah River watershed is agricul-tural. The Virginia Department of Conservation and Recreation, Shen-andoah River Watershed, http://www.dcr.virginia.gov/waterways/the_problem/watersheds_and_you/p_shenandoah_river.htm (last updated Jan. 15, 2003). 15 See 9 VA. ADMIN. CODE § 25-40-10 et seq. (2005) (regulating discharges in the Chesapeake Bay watershed and other nutrient-enriched waters in the state); 9 VA. ADMIN. CODE § 25-720 (2006) (assigning waste load allocations to 45 significant discharg-ers in the Shenandoah-Potomac ba-sin). 16 VA. CODE ANN. § 62.1-44.17:1.1 (2005). 17 Id. 18 See John A. Loury & Charles Fuh-lage, Sampling Poultry Litter for Nu-trient Testing, (May 1999), http://muextension.missouri.edu/xplor/agguides/soils/g09340.htm (stating

that poultry litter is an “unbalanced fertilizer” and application according to a soil’s nitrogen needs will lead to excessive phosphorus build up). 19 Shenandoah River Watershed, supra note 14. 20 See Pronsolino v. Nastri, 291 F.3d 1123, 1126–27 (9th Cir. 2003) (stat-ing that the CWA “provides no direct mechanism to control nonpoint source pollution”). Virginia is one of the few states that has set implemen-tation plans under the CWA’s TMDL program. However, since the plans are not a federal requirement, they are not subject to review and ap-proval by EPA, or challengeable in federal court (as are TMDLs them-selves). 21 For an overview of Virginia’s Water Quality Improvement Fund, see Wa-ter Quality Improvement Fund Back-ground, http://dls.state.va.us/groups/statewaters/meetings/051205/Water%20Quality%20Impr%20Fund.pdf (last visited Jan. 3, 2006). 22 See Department of Conservation and Recreation, Nutrient Manage-ment Program, Virginia Poultry Litter Application Cost-Share Pilot, 2003, at 1, at http://www.dcr.virginia.gov/sw/docs/poultry.pdf (last visited Jan. 21, 2006). 23 Michael Hardy, Chesapeake Bay’s Red-Letter Day, RICHMOND TIMES-DISPATCH, (Dec. 14, 2005), available at http://www.timesdispatch.com/servlet/Satel-lite?pagename=RTD/MGArticle/RTD_BasicArti-cle&c=MGArticle&cid=1128768704644. 24 For a copy of the agreement, see Chesapeake 2000, available at http://www.chesapeakebay.net/agreement.htm (last visited December 31, 2005). 25 9 VA. ADMIN. CODE § 25-40-10 et seq. (2005). 26 Chesapeake Bay Foundation, Vir-ginia Governor Pledges $257 Million to Clean Up the Bay, (Dec. 14, 2005), at http://www.cbf.org/site/News2 ?page=NewsArticle&id=13286&news _iv_ctrl=1282 (last visited Jan. 21, 2006).

27 Rex Springston, More Green for the Environment, RICHMOND TIMES-DISPATCH, (Jan. 11, 2004), available at http://www.campaignva.org /rtd11104moregreen.htm.

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Digest

United States Supreme Court

United States Supreme Court is Set to Decide Groundbreaking Clean Water Act Cases United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted, 126 S. Ct. 414 (2005); Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6th Cir. 2004), cert. granted, 126 S. Ct. 415 (2005); S.D. Warren Co. v. Bd. of Envtl. Prot., 868 A.2d 210 (Me. 2005), cert. granted, 126 S. Ct. 415 (2005) Stephen Mealor, Class of 2006, Washington & Lee University School of Law

This past winter, the Supreme Court granted certiorari on three critical cases relating to wetlands protections under the Clean Water Act. Oral argument took place in February, and a ruling from the Supreme Court is expected this summer. Below are summaries of the three cases. United States v. Rapanos and Carabell v. U.S. Army Corps of Engineers are de-cisions from the U.S. Court of Appeals for the Sixth Circuit. S.D. Warren Co. v. Board of En-vironmental Protection, comes to the Supreme Court of the United States from the Supreme Judicial Court of Maine.

Carabell and Rapanos: Sixth Circuit Upholds Clean Water Act Jurisdiction Over Wetlands

Where There is a “Significant Nexus” With Navigable Waters

In the summer of 2004, the Sixth Circuit Court of Appeals twice held that a wetland does not need to abut a navigable waterway to fall under the scope of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Persuaded by the Fourth Circuit’s broad reading of the CWA in United States v. Deaton, 332 F.3d 698, 702 (4th Cir. 2004), the Sixth Circuit up-held the Army Corps of Engi-neers’ exercise of its CWA jurisdiction over certain wetlands because there was a “significant nexus between the wetlands and navigable waters.” The court con-cluded in Rapanos that a “hydro-logical connection” between a wetland and a navigable water miles away can serve as this nexus and in Carabell that a wet-land is still protected though it is separated from other waters by a manmade berm.

Central to the court’s decisions in both Rapanos and Carabell was a split among the circuits over the interpretation of Solid Waste Agency of North Cook County v. United States Army Corps of En-gineers, 531 U.S. 159 (2001) [hereinafter SWANCC]. SWANCC denies administrative or Chevron deference to the Army Corps of Engineers’ application of the CWA to isolated bodies of water that host migratory birds. Though the Fifth Circuit interprets SWANCC as limiting CWA juris-diction over wetlands to those that have a “significant measure of proximity” to navigable wa-ters, In re Needham, 354 F.3d 340, 347 n.12 (5th Cir. 2003), the Fourth, Sixth, Seventh, and Ninth Circuits confine SWANCC’s hold-ing to invalidating the migratory bird rule. In Rapanos and Cara-bell, the Sixth Circuit took special

note that SWANCC acknowledges the deference given in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) to the Corps’ regulations concern-ing the nexus between wetlands and navigable waters. SWANCC’s approval of Riverside Bayview’s broad interpretation of the CWA became the touchstone for Ra-panos and Carabell.

In appeals from a criminal case, United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003), cert. denied, 541 U.S. 972 (2004), and the companion civil case, United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), cert. granted, 126 S. Ct. 414 (2005), the Sixth Cir-cuit affirmed the purview of the CWA over wetlands more than ten miles from the nearest navi-gable waters. John Rapanos filled over 54 acres of wetland in order to construct a shopping mall. Ac-cording to the district court, water from each of his parcels could flow into roadside ditches and drains that eventually disperse water into either a navigable wa-ter or a tributary thereof. Rapanos maintained that in some instances the drainage occurs only because the weather happens to be condu-cive or because he has dug addi-tional ditches to enable the flow. Even so, because any contamina-tion of the Rapanos wetlands could affect the ditches and drains, which in turn could affect navigable-in fact waters, the wet-lands fell under CWA jurisdic-tion.

Two months after issuing its opinion in the Rapanos civil case, the Sixth Circuit filed its opinion in Carabell. The disputed wetland in this case was not separated from a navigable water or tribu-tary by a great distance, but rather by a manmade berm running alongside a ditch. Any water that

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entered the ditch would make its way to Lake St. Clair a mile away. In its definition of “adja-cent wetlands,” the Corps in-cluded “wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” 33 C.F.R. § 328.3(c). The district court de-termined that there was “a ‘sig-nificant nexus’ between the wetlands on the Carabells’ prop-erty and the adjacent nonnaviga-ble ditch abutting their property, a ditch that flows one way or an-other into other tributaries of navigable waters of the United States.” Carabell, at 710. Thus, the Sixth Circuit held, consistent with both Rapanos cases, that the existence of this significant nexus gave the Corps CWA jurisdiction over the Carabell property.

S.D. Warren: Flow of Water Through Dam Constitutes a “Discharge” Under the Clean Water Act

Section 401 of the Clean Water Act (CWA) of 1972, 33 U.S.C. § 1341 (2000), requires an appli-cant for a federal license to con-duct an activity that “may result in any discharge into the naviga-ble waters” to provide the licens-ing agency with a state certification that the discharges would comply with the CWA. Seeking new licenses for its hy-droelectric dams, the S.D. Warren Company received a conditional certification from Maine’s De-partment of Environmental Pro-tection (DEP). Unhappy with the DEP’s conditions, Warren prop-erly appealed first to the Board of Environmental Protection (BEP), which affirmed, and then to Maine’s Superior Court, which affirmed the BEP. On appeal to

the Supreme Judicial Court of Maine, Justice Rudman, writing for a unanimous court, also af-firmed the BEP’s decision, hold-ing that the mere flow of water through a dam constitutes a “dis-charge” under the CWA.

Although the CWA does not squarely define “discharge,” it does provide that “[t]he term ‘dis-charge’ when used without quali-fication includes a discharge of a pollutant, and a discharge of pol-lutants.” CWA § 502(16), 33 U.S.C. § 1362(16) (2000). Sec-tion 502(12) of the act defines “discharge of a pollutant” as “any addition of any pollutant. . . .” 33 U.S.C. § 1362(12) (2001) (em-phasis added). Following Ala-bama Rivers Alliance v. FERC, 325 F.3d 290 (D.C. Cir. 2003), and North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997), the Maine court determined that any “addition” to navigable waters is a “discharge” under the CWA.

The “addition” need not originate from outside the navigable water, nor must an “addition” result in an increase to the water. As the court explained, when water flows through Warren’s dams, the water loses its status as “waters of the United States” and becomes the property of Warren, which has private control over the water. When the dams return the water to its natural course, Warren is adding its water to the river, thereby performing a “discharge” under section 401.

Furthermore, the water need not contain any pollutants to be a dis-charge. Because section 502(16) states that a discharge “includes a discharge of pollutant,” rather than stating “means a discharge of pollutant,” an “addition” re-mains the only fundamental char-

acteristic of a discharge under the CWA. As a result, the court agreed with the Ninth Circuit’s holding in Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092, 1098 (9th Cir.1998), “that any discharge from a dam, whether polluting or not, is a ‘discharge’ for purposes of sec-tion 401(a)(1).” S.D. Warren Co., 868 A.2d at 216.

In addition to affirming section 401’s applicability to dams, the Maine court also rejected War-rens other procedural and statu-tory arguments. Determining that the BEP is owed deference even though the BEP is a voluntary state board ruling on federal is-sues, the court held that the BEP could condition the certification on a dissolved oxygen criteria and retain the right to reopen the certi-fication and amend the condi-tions. In addition, the BEP did not need to institute rule-making pro-cedures in its assessments of Warren’s applications because the BEP was operating on a case-by-case basis.

NB: The U.S. Supreme Court upheld the Maine court’s deci-sion, Rec. No. 04-1527, on May 15, 2006.

Federal Government Retains Title to Submerged Lands Beneath Glacier Bay Alaska v. United States, 125 S. Ct. 2137 (2005) Ryan Dunlavey, Class of 2006, Washington & Lee University School of Law

In 2000, Alaska filed suit against the United States to resolve a dis-pute over title to two sets of sub-merged lands lying beneath the waters of the Alexander Archi-pelago and Glacier Bay National

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Park, respectively. The Supreme Court of the United States, exer-cising its original jurisdiction, appointed a Special Master to investigate the matter. The Spe-cial Master recommended sum-mary judgment for the United States. The Court held that Alaska failed to establish title to lands submerged beneath the waters of the Alexander Archipelago where the waters were neither historic inland waters nor juridical bays and that the United States re-tained federal title to lands sub-merged beneath Glacier Bay when Alaska achieved statehood.

Under the “equal footing doc-trine” and the Submerged Lands Act, states enjoy a presumption of title to lands submerged beneath inland waters within their boundaries and beneath territorial waters within three miles of their coasts. The United States can de-feat a state’s presumed title if it can show that, prior to granting statehood, it set aside the disputed land in a way that shows intent to retain title.

Alaska claimed title to pockets of land submerged beneath the wa-ters of the Alexander Archipelago based on two theories. Alaska argued the Archipelago’s waters are historic inland waters. Alter-natively, Alaska argued that the four Archipelago islands should be deemed to form a peninsula encompassing two “juridical bays” within the meaning of the international Convention on the Territorial Sea and the Contigu-ous Zone (Convention).

The Court unanimously rejected both theories. Justice Kennedy, writing for the entire Court in this section, explained that to make an historic inland water claim, a state must demonstrate the United States exercises exclusive author-

ity over the disputed water and has done so continuously with the acquiescence of foreign nations. Per the special master’s findings, the Court found that since 1821 neither Russia nor the United States had asserted exclusive au-thority over the disputed waters. Addressing Alaska’s second the-ory, the Court assumed, ar-guendo, that four Archipelago islands could be deemed to form a peninsula connected to the Alas-kan mainland. Justice Kennedy explained, however, that Alaska’s proposed bays did not form the sort of “well-marked indenta-tions” discernible by mariners as defined by the Convention.

In contrast, Glacier Bay does form “a dramatic indentation” into the Alaskan mainland, thereby creating a strong pre-sumption that Alaska has title to the disputed land masses sub-merged beneath the Bay. The Court – with the exceptions of Justices Rehnquist, Scalia, and Thomas, who dissented in part – nonetheless concluded that the United States set aside the en-tirety of Glacier Bay for the pro-tection of wildlife pursuant to the Antiquities Act when President Coolidge established Glacier Bay National Monument in 1925. Per the special master’s findings, Jus-tice Kennedy indicated exclusion of the submerged lands would compromise the important pres-ervation and research purposes behind the Monument’s creation. The Court suggested that the crea-tion of the Monument itself likely expressed the requisite intention to exclude the submerged lands from Congress’s general transfer of public lands to Alaska under the Alaska Statehood Act. Re-gardless, the Court interpreted a proviso in §6 of the ASA to ex-pressly exclude the lands beneath

Glacier Bay from the transfer of title.

Federal Circuit Court Fourth Circuit Upholds Environmentalists’ NEPA Claims Against Navy, But Partially Vacates Injunction National Audubon Society v. Dep’t of the Navy, 422 F.3d 174 (4th Cir. 2005) Joshua Autry, Class of 2008, Washington & Lee University School of Law

Several environmental organiza-tions and two counties in North Carolina alleged the Navy vio-lated the National Environmental Policy Act when it decided to build a practice landing airfield five miles west of Pocosin Lakes National Wildlife Refuge. The U.S. District Court for the Eastern District of North Carolina en-joined the Navy from engaging in planning, development, or con-struction activities until it meets NEPA requirements. The United States Court of Appeals for the Fourth Circuit affirmed in part. The court held that the Navy failed to take the “hard look” NEPA required. However, the court found the district court’s injunctive order excessive and ordered the lower court to narrow the injunction to permit the Navy to engage in certain planning ac-tivities while it conducts a new environmental impact statement.

NEPA requires a federal entity planning to undertake an activity that will significantly affect the environment to take a “hard look” at the activity’s potential effects. The plaintiffs persuaded the dis-trict court that the Navy’s EIS failed to adequately address the potential threat the airfield opera-

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tions poses to waterfowl in the refuge and to the ecotourism the refuge generates. On appeal, the Navy maintained it took a “hard look” by conducting site investi-gations, a Bird Aircraft Strike Hazard (BASH) analysis, scien-tific literature review, compara-tive analyses and a cumulative impact assessment.

The Court of Appeals, emphasiz-ing the proposed airfield’s prox-imity to the Refuge, found the Navy’s EIS inadequate on multi-ple counts. Circuit Judge Wilkin-son, writing for the court, indicated the Navy’s site investi-gation and BASH analysis were insufficient. Wilkinson pointed out that most of the scientific lit-erature cited by the Navy coun-tered its conclusions and that the Navy’s comparison analyses failed to address effects on spe-cific waterfowl. Finally, the court found that the Navy failed to ade-quately analyze the cumulative impact of current and future flight operations at the selected site.

Despite these findings, the circuit court criticized the district court for delving into questions of the Navy’s subjective good faith in the EIS process and for second-guessing the Navy’s conclusions regarding the necessity of its cho-sen site. Judge Wilkinson re-minded the lower court that its analysis is limited to the objective sufficiency of the EIS alone and that the lower court’s own opin-ion as to the wisdom of the Navy’s decision should not influ-ence its review of whether the Navy followed NEPA.

The court of appeals stated that the district court’s “broad-brush view” of NEPA led to a “sweep-ing” injunction that exceeded NEPA requirements and dis-

counted potential harms to mili-tary readiness. NEPA’s implementing regulations, Wil-kinson explained, allow the Navy to engage in several activities that would enhance its supplemental NEPA analysis, avoid environ-mental harm, yet not limit the choice of reasonable alternatives. The court ordered the district court to narrow the injunction to allow the Navy to conduct site specific Wildlife Hazard and BASH assessments, resume title searches and surveys, purchase land from willing sellers; resume design planning, and apply for various permits.

Likely Recurrence of Clean Water Act Violations, Despite Defendants’ Good Faith Efforts to Remedy, is Sufficient to Create Subject Matter Jurisdiction over Citizen-Suit Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc., 412 F.3d 536 (4th Cir. 2005) Garren Laymon, Class of 2007, Washington & Lee University School of Law

Several citizen groups brought suit against two swine farms that had spilled wastewater into North Carolina rivers in violation of the Clean Water Act. The case re-sulted in a consent decree after the United Stated intervened as a plaintiff. The citizen groups who had brought the suit were eligible for an award of attorneys’ fees if they took part in the consent de-cree, but their participation in the decree was made contingent on their ability to show that they met the jurisdictional requirements of Section 505(a) of the CWA and held Article III standing at the time they filed their suit. In Am.

Canoe Ass’n, Inc. v. Murphy Farms, Inc., 326 F.3d 505 (4th Cir. 2003), the Fourth Circuit up-held a district court decision that the citizen groups had standing but remanded the jurisdictional question. On remand, the district court decided that, because there was a reasonable likelihood at the time the citizen groups filed suit that the farms would remain “in violation” of the CWA, the citi-zen groups met the jurisdictional requirements of Section 505(a). The United States Court of Ap-peals for the Fourth Circuit af-firmed.

Subject matter jurisdiction under Section 505(a) of the CWA re-quires a citizen-plaintiff to show that an entity is “in violation” of the CWA at the time the suit was filed. It is not sufficient to show past violations of the Act; the citizen-plaintiff must either prove the existence of “violations that continue on or after the date the complaint is filed” or show “evi-dence from which a reasonable trier of fact could find a continu-ing likelihood of a recurrence in intermittent or sporadic viola-tions.” Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988). Applying this rule to the instant case, the district court determined that evidence of three spill events at the farms after the citizen groups had filed suit dem-onstrated a continuing likelihood of a recurrence of sporadic viola-tions. The district court found that the farms made good faith efforts to correct the cause of the viola-tions, but the Fourth Circuit agreed that the farms were none-theless “in violation” of the CWA at the time the groups filed suit.

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The farms argued on appeal that the district court’s opinion created an unfair burden because it re-quired them to eliminate all hu-man error from their operations. In essence, the farms requested that the court carve out an excep-tion to Section 505(a) exempting past violators that are still in vio-lation of the CWA but have made good faith efforts to remedy the violations. However, Judge Lut-tig, writing for the court, noted that the CWA creates a regime of strict liability for polluters. Citing Gwaltney I, 484 U.S. 49, 56 (1987), Luttig stated that violators such as the Farms continue to be in violation of’ the Act while there exists an actual likelihood of recurring violations, regardless of the defendant’s bona fides or current subjective culpability for that risk. Additionally, because staff reforms after the most recent spill had, in fact, prevented fur-ther violations of the CWA by the farms, the burden imposed by strict liability was not as taxing as the farms claimed.

D.C. Circuit Vacates EPA Rule Altering Clean Air Act Monitoring Requirements Environmental. Integrity Project v. EPA, 425 F.3d 992 (D.C. Cir. 2005) Edward Standley, Class of 2006, Washington & Lee University School of Law

The Environmental Integrity Pro-ject and other petitioners chal-lenged a final rule promulgated by the Environmental Protection Agency (EPA) that would have altered source permit and moni-toring requirements under the Clean Air Act, 42 U.S.C. §§ 7761a(a) & 7661c(a) (2000). In an opinion written by Judge David Sentelle, the U.S. Court of

Appeals for the D.C. Circuit set aside the final rule on the grounds that it was not a logical outgrowth of the EPA’s proposed rule.

Pursuant to Title V of the Clean Air Act, EPA “Part 70” regula-tions establish periodic monitor-ing requirements for stationary source air pollution permits. The regulations contain an “umbrella” rule requiring that, consistent with the periodic monitoring rule, each permit contain “compliance certification, testing, monitoring, reporting, and recordkeeping re-quirements sufficient to assure compliance with the terms and conditions of the permit.” On September, 17 2002, the EPA proposed to amend the umbrella rule to clarify that the rule oper-ates independently of periodic monitoring requirements and re-quires case by case supplementa-tion of permits containing otherwise insufficient compliance monitoring. On January 22, 2004, however, the EPA issued a final rule holding that the two rules are not separate regulatory standards and prohibiting state authorities from imposing supplemental monitoring requirements under the umbrella rule.

An agency’s final rule may differ from the proposed rule only to the extent that the final rule is a “logical outgrowth” of the former. In vacating the EPA’s final rule, the court emphasized that, with-out proper notice, parties affected by a proposed rule would not be able to adequately develop evi-dence to support their position and many of the benefits of public comments in the rulemaking process would be subverted.

The EPA contended its final rule was merely an interpretation of the existing rule. The court dis-agreed, explaining that when an

agency has established a defini-tive interpretation of a rule, any major change in that interpreta-tion is in effect an amendment to the rule. In this case, the EPA reinterpreted the existing rule in a way that was actually the oppo-site of the proposed rule. The court concluded that the EPA’s “flip flop” was not a “logical out-growth” of the proposed rule and remanded the matter to the EPA for further proceedings.

Federal District Court U.S. Department of Agriculture’s Denial of DCP Benefits to Holly Hills Farm Upheld as Neither an Abuse of Discretion Nor Arbitrary and Capricious Holly Hills Farm Corp. v. United States, No. 3:04CV856, 2005 U.S. Dist. LEXIS 12875 (E.D. Va. June 29, 2005) Seth Mott, Class of 2008, Washington & Lee University School of Law

Holly Hills Farm Corporation sought judicial review of the final decision of the United States De-partment of Agriculture (USDA) to deny its application for benefits under the Direct Counter-Cyclical Program (DCP), managed by the Farm Services Agency (FSA). Holly Hills, owner of a 650-acre estate in Caroline County, Vir-ginia, contested the determination that a small portion of its farm was illegally converted wetland, which rendered the farm ineligi-ble for benefits. Concluding that the agency’s decision did not re-sult from any abuse of discretion and was not arbitrary and capri-cious, U.S. Magistrate Judge Dennis W. Dohnal granted the

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government’s motion for sum-mary judgment.

Holly Hills claimed both proce-dural violations and substantive errors against the USDA. On the procedural claims, the magistrate found that the agency did not abuse its discretion. The magis-trate ruled that the agency’s de-nial of Holly Hills’ request for production of evidence through subpoenas was not an unreason-able because the request failed to meet the requirements of 7 C.F.R. § 11.8(c)(5)(ii) and § 11.8(a)(2)(iii)(A) and because Holly Hills failed to present evi-dence that should have been available without document sub-poenas when it had the opportu-nity. The magistrate determined that the denial of Holly Hills’ re-quested witness subpoenas was not an abuse of discretion, for Holly Hills failed to show “that the information [could] not be obtained except through testi-mony of the person” to be sub-poenaed. 7 C.F.R. § 11.8(a)(2)(iii)(B). The magistrate then rejected Holly Hills’ conten-tion that the Hearing Officer en-gaged in inappropriate ex parte communications with the FSA in violation of 7 C.F.R. § 11.7(a)(1) because the communications con-cerned procedural matters and the regulation prohibits only ex parte communications regarding the merits of an appeal. The magis-trate concluded his discussion of procedural issues stating that, contrary to Holly Hills’ claims, the hearing officer did not act as counsel for the defendant but merely attempted to marshal and distill the applicable evidence and to ensure that pertinent issues were addressed.

The magistrate’s opinion then turned to Holly Hills’ substantive claim that the USDA’s decision was arbitrary and capricious. Holly Hills argued that it had not converted a wetland and, alterna-tively, that any conversion would have occurred prior to November 28, 1990, which, under 7 C.F.R. § 12.4(a)(3), would prevent the conversion from being the basis for a denial of FSA benefits. But the magistrate held that substan-tial evidence, including “before and after” aerial photography, supported the determination that portions of the farm were con-verted from wetlands in August 1994, and that it was within the Hearing Officer’s discretion to determine the reliability of the evidence. The magistrate also rejected Holly Hills’ argument that any clearing was the result of the government’s guidance. Al-though there was evidence to support this contention, Holly Hills was also advised to seek a formal determination of the field before any clearing. Furthermore, property owners are expected to know the applicable law and may not rely on the conduct of gov-ernment agents known to be con-trary to the law. Because the USDA’s decision was supported by substantial evidence and was not procedurally defective, the magistrate refused to overturn the agency decision as arbitrary and capricious or as an abuse of dis-cretion and granted the govern-ment’s motion for summary judgment.

District Court Strikes Portion of Clean Water Act Indictment U.S. v. Cooper, 384 F.Supp.2d 958 (W.D. Va. 2005)

S. Christopher Mullins, Class of 2007, Washington & Lee University School of Law

The United States indicted D.J. Cooper for thirteen counts of knowingly discharging pollutants in 2003 and 2004 in violation of the Clean Water Act. The indict-ment preamble included an exten-sive discussion of Cooper’s prior dealings with environmental and health agencies and his business interests in trailer homes. Cooper moved to strike the preamble, arguing it was unfairly prejudicial “surplusage” within the meaning of Fed. R. Crim. P. 7(d). Cooper also filed a motion in limine to exclude financial statements and tax returns that he argued were irrelevant to the Government’s charges. Although District Court Judge Norman Moon declined to exclude the tax record before trial, he granted Cooper’s motion to strike in part, concluding that discussion of Cooper’s prior deal-ings with environmental agencies was unnecessary to the indictment and threatened a “likely impact and potential for prejudice” analogous to an extrajudicial statement.

Rule 7(d) of the Federal Rules of Criminal Procedure grants a mo-tion to strike surplusage only if the language “is (1) not relevant to the charges; (2) inflammatory; and (3) prejudicial.” The United States argued that the history of Cooper’s past relationship with environmental and health agen-cies demonstrate that he know-ingly discharged the pollutant without a permit, and that this information was relevant to the mens rea component of the gov-ernment’s prima facie case.

Judge Moon agreed that the his-tory in the preamble was legally relevant, but considered it unnec-

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essary for making the sort of “plain and concise” prima facie pleading contemplated by Fed. R. Crim. P. 7(c). More significantly, Moon viewed the surplusage as analogous to an extrajudicial statement. First, Moon explained, the preamble was part of a public record with potential for wide-spread media coverage. Second, the surplusage went to Cooper’s “credibility, reputation or crimi-nal record.” Although he declined to characterize the surplusage as an extrajudicial statement, Judge Moon considered it clear that the Model Rules of Professional Conduct would prohibit a prose-cutor from publicizing Cooper’s past dealings with environmental agencies. Moon held that “when an indictment contains surplusage that goes beyond its limited pur-pose of charging a party before the court, that surplusage operates much like an extrajudicial state-ment in its likely impact and po-tential for prejudice.” Cooper, 384 F.Supp.2d 958, 961 (W.D. Va. 2005). Judge Moon therefore granted Cooper’s motion to strike portions of the indictment refer-encing his prior compliance his-tory, but declined to strike the paragraph referencing Cooper’s business interests, concluding it was neither inflammatory nor prejudicial.

Additionally, Cooper moved in limine to exclude tax records and other financial information. Coo-per argued that although his 2003-2004 tax records may be relevant, his 1993-2003 tax re-cords were irrelevant to the crimes he is charged. Judge Moon declined to exclude this evidence before trial, concluding that it was too early to ascertain the rele-vance of Cooper’s tax records.

Club’s Pre-Suit Cessation of Shooting Near Navigable Water Prevents Violation of CWA, but Past Shooting Presents a Genuine Issue of Material Fact as to Violation of RCRA Potomac Riverkeeper, Inc. v. Nat’l Capital Skeet and Trap Club, Inc., 388 F.Supp.2d 582 (N.D. Md. 2005) Allison A. Caldwell, Class of 2007, Washington & Lee University School of Law

Petitioner Potomac Riverkeeper (PRK), a non-profit organization dedicated to restoring and protect-ing the Potomac River, brought suit against the National Capital Skeet and Trap Club, Inc., the Maryland Department of Natural Resources (MDNR), and C. Ronald Franks, Secretary of MDNR, for violation of the Clean Water Act and the Resource Con-servation and Recovery Act. The Club operated a skeet and trap range within Seneca Creek State Park and adjacent to the Great Seneca Creek, a tributary to the Potomac River, under authority granted by MDNR in a Tempo-rary Right of Entry License Agreement. At its closest point, the firing line was within 300 to 400 feet of the Creek. Shooting at the Range deposited lead shot in and about the creek. Judge Quarles of the United States Dis-trict Court for the Northern Divi-sion of Maryland granted summary judgment to Franks and the Club on the CWA claim but denied summary judgment to Franks, the Club, and PRK on the RCRA claims. MDNR’s motion to dismiss all claims against it due to sovereign immunity was also granted.

The CWA makes it unlawful for any person to discharge pollutants from any point source into navi-gable waters of the United States without obtaining a pollution dis-charge permit and complying with its terms. In its first claim, PRK alleged that the Club vio-lated the CWA by operating without a pollution discharge permit. PRK further alleged that the Club’s actions met the stan-dard required to sustain a civil action under the CWA: that there is a reasonable likelihood that the Club will continue to violate the CWA because it has not been permanently closed, shut down, or redesigned. The court, how-ever, disagreed, accepting Franks’ evidence that the Club was not likely to continue to violate the CWA because the facility had been shut down for 18 months prior to the filing of the suit. Fur-thermore, MDNR had instructed the Club that it would not author-ize the reopening of the Range without assurance that the lead shot would not contaminate areas protected by the CWA. The court concluded that no reasonable jury could find that the Club would violate the CWA in the future.

The RCRA prohibits the disposal of solid waste in a flood plain. In its second claim, PRK alleged that the Defendants violated the RCRA because lead shot has been deposited in a flood plain, which includes any lowland and rela-tively flat areas adjoining inland and coastal waters. To prove an ongoing violation, as required by the RCRA, PRK presented evi-dence that the previously dis-charged lead shot is continuously subjected to “washout,” which is defined as “the carrying away of solid waste by waters.” 40 C.F.R. 257.3-1(b)(3). However, the RCRA also requires PRK to show

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that this poses a hazard to wild-life, land, and water resources. On this point, the court ruled that the Defendants presented enough evidence that the lead concentra-tions are not harmful to the envi-ronment in the affected area to create a genuine issue of material fact regarding the lead shot’s risk to the flood plain.

The RCRA provides a right of action against any person who contributes to the disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or to the environment. Franks, however, sought sum-mary judgment based on Eleventh Amendment immunity. The court rejected this claim because of an exception to Eleventh Amend-ment immunity when citizens sue state officials to cause them to conform to federal law. “If the official’s violation is ongoing and prospective and injunctive relief is sought, the exception applies.” Potomac Riverkeeper, at 589. Be-cause PRK did seek injunctive relief and there was an issue of material fact as to the other two issues, the court denied Franks motion for summary judgment

District Court Finds Secretary of Interior Improperly Approved Changes in West Virginia Mining Regulations Ohio River Valley Environ-mental Coalition v. Norton, 2005 WL 2428159 (S.D.W.Va. 2005) Ross Henry, Class of 2006, Washington & Lee University School of Law

In the U.S. District Court for the Southern District of West Vir-ginia, the Ohio River Valley En-

vironmental Coalition challenged the Secretary of the Interior’s ap-proval of the West Virginia De-partment of Environmental Protection (WVDEP)’s amend-ment of its definition of “mate-rial” hydrologic damage. The Coalition argued that Secretary Norton improperly denied a re-quest to reopen the public com-ment period and that her approval decision was arbitrary, capricious, and inconsistent with the Surface Mining Control and Reclamation Act. Both parties moved for summary judgment. U.S. District Judge Robert Chambers found the public comment period adequate but concluded Secretary Norton’ approval of the amendments, “as no less effective than federal regulations and otherwise consis-tent with SMCRA, was a clear error of judgment.” Judge Cham-bers granted summary judgment in favor of the Coalition, vacated the amendments, and remanded the matter to the Secretary for further proceedings.

Section 1260 of SMCRA requires states to determine that a pro-posed mining operation is de-signed to prevent material damage to the surrounding hydro-logic balance before granting a mining permit. Interior regula-tions leave states free to gauge “material damage” themselves. In 2001, West Virginia proposed to eliminate numeric standards it had previously used to measure “material damage” and substitute a standard which defined materi-ality as “long-term or permanent change which has significant ad-verse impact on existing condi-tions and uses.” Following a clarification letter from the WVDEP and an extended com-ment period, Secretary Norton

published her approval of the proposed revisions.

In review, Judge Chambers first rejected the Coalition’s claim that the Secretary improperly denied their request to reopen the com-ment period for consideration of a WVDEP employee’s deposition in another case. In Chambers’ view, the Secretary provided am-ple opportunity for public input, and in any case, the WVDEP em-ployee’s deposition would not have altered the justifications previously offered by WVDEP.

Judge Chambers nevertheless concluded that the Secretary’s approval of the WVDEP amend-ments was a clear error of judg-ment. First, the court indicated that the undefined terms “long-term change” and “significantly adverse impact” went undefined and likely increased subjectivity and unguided discretion in the process. Judge Chambers noted that the federal Office of Surface Mining had itself considered the proposed revision vague. The Secretary’s subsequent approval, the court indicated, failed to ex-plain how permit reviewers, en-forcement officials, mine operators or other affected parties could interpret the terms. Neither WVDEP nor the Secretary, in Chambers’ estimation, provided “a sufficient explanation of how the new definition of material damage would constitute the ob-jective standard WVDEP claimed.” Judge Chambers added, “[t]he Secretary cannot simply rubber-stamp amendments, she must analyze and explain that proposed amendments will meet federal standards.”

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Virginia Supreme Court Court Has Jurisdiction to Review Tribe’s Claim Against City Under 1677 Treaty Alliance to Save the Mattaponi v. Commonwealth, 621 S.E.2d 78 (Va. 2005) Stephen Mealor, Class of 2006, Washington & Lee University School of Law

In 1997 the State Water Control Board issued the city of Newport News a Virginia Water Protection Permit for the construction of the King William Reservoir. Plans for the reservoir included a 75 mgd intake structure and a pump-ing station to “pump-over” water from the Mattaponi River. The Mattaponi Indian Tribe and a consortium of environmental or-ganizations led by the Alliance to Save the Mattaponi challenged the SWCB’s decision under the Virginia Administrative Process Act. After the petitioners estab-lished standing in a consolidated appeal, Mattaponi Indian Tribe v. Commonwealth, 541 S.E.2d 920 (2001), the Tribe amended its pe-tition to allege that the SWCB’s decision additionally violated the 1677 Treaty at Middle Plantation and that the Commonwealth is bound to the treaty as a matter of federal law.

The circuit court on remand de-clared that the Commonwealth could not claim sovereign immu-nity in the APA-based appeals. The circuit court nonetheless granted summary judgment to the defendants on the APA claims and dismissed the Tribe’s treaty claims for lack of jurisdiction un-der the terms of the treaty. The court of appeals affirmed the cir-

cuit court’s APA-related deci-sions but transferred the treaty claims to the Virginia Supreme Court. Mattaponi Indian Tribe v. Commonwealth, 601 S.E.2d 667 (2004).

The Supreme Court, in an opinion by Justice Keenan, upheld the lower courts’ APA-related deci-sions. The Commonwealth argued to no avail that it has sovereign immunity from the APA claims because Va. Code Ann. § 2.2-4002(B)(3) exempts from judicial review the “location, design, specifications or construction of public buildings or other facili-ties;” the court held that the waiver of immunity in the Water Control Provisions of § 62.1-44.29 is controlling because that statute is more specific to the cir-cumstances. Among a number of APA claims the court addressed, it found that the SWCB acted within its discretion when it bal-anced the city’s proposed off-stream uses of the river with the river’s existing instream uses and when it issued the permit before the completion of certain scien-tific studies. The court also ruled that the SWCB did not need to consider the treaty because the Water Control Law, which gov-erns the SWCB, does not concern private rights. The court noted that § 62.1-44.15:5(C), which requires the SWCB to consider cultural and aesthetic values, does not necessarily require considera-tion of a site’s archeological sig-nificance. Lastly, the Tribe did not present enough evidence to demonstrate a unique religious or cultural dependence that the pro-posed reservoir would adversely affect.

Assessing the treaty claims, the court stated that the treaty was a matter of Virginia rather than fed-

eral law because the treaty was between the British Crown and a tribe recognized only by the Commonwealth. The phrase “treaties made” in the U.S. Con-stitution’s Supremacy Clause re-fers only to treaties entered into or officially ratified by the United States after 1787. The Indian Commerce Clause and the Nonin-tercourse Act are also irrelevant because the permit does not con-cern commerce or land rights. The Court adopted the circuit court’s ruling that the treaty is Virginia law only because the defendants did not appeal that issue.

Because the treaty is state law, the Commonwealth and its agents can enjoy sovereign immunity unfet-tered by the Ex Parte Young ex-ception, which applies only to federal law. Specifically, Robert Burnley, named a co-defendant in his official capacity as Executive Secretary of the SWCB, can claim immunity as a high-level official. The city of Newport News, however, has no claim to immunity.

Reversing the circuit court’s deci-sion that it did not have jurisdic-tion, the Supreme Court remanded the Tribe’s treaty claims against the city. The cir-cuit court held that it lacked juris-diction because the treaty specified that the tribe should ap-peal to the governor. Interpreting the treaty in its historical context, the Supreme Court pointed out that a separate judicial branch did not exist in Virginia in 1677. To-day, however, a court of law is the proper place to hear the treaty dispute because the spirit of the treaty grants the Tribe the stan-dard legal recourse for other inju-ries afforded to other citizens.

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Easements Burdening Bike Trail Are Non-Exclusive Easements in Gross and May Not Be Apportioned to Third Parties Va. Elec. & Power Co. v. N. Va. Reg’l Park Auth., 618 S.E.2d 323 (Va. 2005) Christopher Jones, Class of 2007, Washington & Lee University School of Law

Subsequent to an option agree-ment signed on December 19, 1977, the Northern Virginia Re-gional Park Authority, in a series of operatively identical deeds, purchased a narrow strip of land 45 miles long from Virginia Elec-tric and Power to be used as a bicycle trail. The property was burdened with Virginia Power easements, as well as with nu-merous licenses representing the interests of various other utility companies. The deeds also con-tained language protecting Vir-ginia Power’s interest in its easement, including its facilities located thereon. The Park Author-ity sought a declaratory judgment that Virginia Power’s easement in gross was not exclusive and that, absent license from the Park Au-thority, Virginia Power could not grant third-party telecommunica-tions companies access to the property. Virginia Power re-sponded by filing an answer and a cross-bill seeking declaratory judgment in its favor. In an opin-ion by Justice Donald W. Lem-ons, the Virginia Supreme Court held that the deeds were not am-biguous and did not grant Vir-ginia Power an exclusive easement in gross such that it could apportion its easement to third parties.

The court determined that, absent any clear language in the deeds to

the contrary, Virginia Power would not have the right of appor-tionment unless its rights in the easement were exclusive. An ex-clusive easement in gross is “one which gives the owner the sole privilege of making the uses au-thorized by it.” 5 Restatement (First) of Property § 493 cmt. c (1944). In order to determine whether this exclusivity existed, the court examined the language of the deeds in question. Of par-ticular relevance to the court’s inquiry were paragraphs 11 and 18 of the option agreement, later incorporated into the deeds, which stated that Virginia Power’s existing rights in the easement were reserved, and that the Park Authority would not as-sign rights in the easement to a third party without the written permission of Virginia Power. Paragraph 18 further stated that Virginia Power was not to with-hold such permission unreasona-bly.

The court reasoned that the facts and circumstances surrounding the contract could be taken into consideration to aid the interpre-tation of the contractual language, provided that they were in accord with the actual words of the agreement. Pursuant to this ap-proach, the court cited the exis-tence of several licenses and leases that had encumbered the property before Virginia Power had acquired it and which contin-ued to encumber Virginia Power’s easement after its trans-fer of the property to the Park Authority. The court found that this record of pre-existing third party interests indicated that Vir-ginia Power did not have an ex-clusive easement. Furthermore, the court found that the language of paragraph 18, which provided

the Park Authority with a means to grant easements to third par-ties, directly contradicted Virginia Power’s claim of an exclusive easement.

Virginia Power relied on Hise v. BARC Elec. Coop., 492 S.E.2d 154 (Va. 1997), to support its as-sertion that it had retained exclu-sive rights to the easement. But the court distinguished the case, noting that the defendant in Hise obtained its easement from the plaintiff through prescription and then expanded it through eminent domain. The Hise court found that the prescriptive easement was exclusive to the defendant, as it was the only entity that made use of it. The Hise court further de-termined that the expansion of the defendant’s prescriptive easement through eminent domain did not in any way undue the exclusivity of its easement by creating any rights in it that were shared by another party. The easement in the instant case was therefore readily distinguishable, for Vir-ginia Power and later the Park Authority purchased the easement subject to the pre-existing inter-ests of third parties.

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Federal Regulation RCRA: Standard Permit Hazardous Waste Management System; Standardized Permit for RCRA Hazardous Waste Management Facilities, 40 C.F.R. Parts 124, 260, 261, 267, & 270 (September 8, 2005) The EPA finalized revisions to RCRA’s hazardous waste permit-ting program to allow for a “stan-dardized permit.” The permit will be available to RCRA treatment, storage, and disposal facilities otherwise subject to RCRA per-mitting that generate and then store or non-thermally treat haz-ardous waste on-site in tanks, containers, and containment buildings. The permit also applies to facilities that receive hazardous waste generated off-site by a gen-erator under the same ownership as the receiving facility and that then store or non-thermally treat the hazardous waste in containers, tanks, or containment buildings. The standardized permit will al-low facilities to obtain and mod-ify permits more easily while still achieving the same level of envi-ronmental protection as individ-ual permits.

CAA: Solid Waste Incin-eration Units Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 40 C.F.R. Part 60 (September 22, 2005) EPA revised its definitions for the terms “solid waste,” “commercial or industrial waste,” and “com-mercial and industrial solid waste

incineration unit” in the regula-tions used to determine the type of sources subject to new source performance standards (NSPS) and emission guidelines (EG) for commercial and industrial solid waste incineration (CISWI) units under section 129 of the Clean Air Act. The EPA will continue to identify CISWI units based on whether such units combust waste without energy recovery; how-ever, the definitions do not in-clude proposed language to include units with only waste heat recovery in the CISWI source category.

RCRA: Wastewater Treat-ment Exemptions Revision of Wastewater Treatment Exemptions for Hazardous Waste Mixtures (“Headworks Exemptions”), 40 C.F.R. Part 261 (October 4, 2005) This action finalizes the addition of benzene and 2-ethoxyethanol to the list of solvents whose mix-tures with wastewaters are ex-empted from the definition of hazardous waste under RCRA. The exemption also includes the scrubber waters derived from the combustion of exempted solvents. Additionally, the rule allows gen-erators to directly measure sol-vent chemical levels at the headworks of the wastewater treatment system to determine whether the wastewater is ex-empt. Finally, eligibility for the de minimus exemption was ex-tended to F- and K-listed wastes and to non-manufacturing facili-ties.

CAA: MSAT Control of Emissions of Hazardous Air Pollutants from Mobile Sources: Default

Baseline Revision, 40 C.F.R. Part 80 (October 6, 2005) This final rule revises the mobile source air toxics (MSAT) rule’s default toxics baseline values for conventional (CG) and reformu-lated (RFG) gasoline refineries and importers that could not de-velop individual toxics baselines for the Control of Emissions of Hazardous Air Pollutants from Mobile Sources (66 F.R. 17230, March 29, 2001). The default baseline values reflect the na-tional average toxics performance of gasoline during the 1998-2000 time period. For RFG, the revised value is 26.78 percent reduction; for CG, the revised value is 97.38 mg/mile.

CAA: Hazardous Air Pollutants National Emission Standards for Hazardous Air Pollutants: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II), 40 C.F.R. Parts 9, 63, 260, 264, 265, 266, 270 & 271 (October 12, 2005) This final rule implements section 112(d) of the Clean Air Act (CAA) by requiring hazardous waste combustors to meet haz-ardous air pollutant (HAP) emis-sion standards reflecting the performance of the maximum achievable control technology (MACT). The rule also discusses the EPA’s decision to not repeal its existing site-specific risk as-sessment (SSRA) policy in re-sponse to the Cement Kiln Recycling Coalition’s (CKRC) comment.

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CAA: Nitrogen Oxides Prevention of Significant Deterioration for Nitrogen Oxides, 40 C.F.R. Part 51 (October 12, 2005) In 1990 a court directed the EPA to harmonize the statutory criteria for establishing the Prevention of Significant Deterioration (PSD) regulations for nitrogen oxides (NOX) contained in sections 166(c) and (d) of the Clean Air Act (CAA). Having reevaluated its increments regarding nitrogen dioxide (NO2) in the PSD, the EPA is retaining its existing NO2 increments. The EPA is also amending its PSD regulations to clarify that states may obtain ap-proval to employ alternative ap-proaches to the existing increments for NO2.

Electronic Reporting Cross-Media Electronic Reporting, 40 C.F.R. Parts 3, 9, 51, 60, 63, 69, 70, 71, 123, 142, 145, 162, 233, 257, 258, 271, 281, 403, 501, 745 & 763 (October 13, 2005) In preparation to establish a framework by which the EPA will accept electronic reports from regulated entities, the Agency set performance stan-dards for electronic submission receiving systems of states, tribes, and local governments that ad-minister EPA programs. The re-ceiving systems will be subject to evaluation and approval by the EPA, and this rule establishes a streamlined process for such ap-proval. The EPA will provide public notice when it is ready to receive direct submissions of cer-tain documents in electronic form.

CWA: Pretreatment Regu-lations Streamlining the General Pretreatment Regulations for Existing and New Sources of Pollution, 40 C.F.R. Parts 9, 122 & 403 (October 14, 2005) In order to reduce the regulatory burden on Industrial Users and State and Publicly Owned Treat-ment Works (POTWs) without adversely affecting environmental protection, the EPA issued a final rule that revised several provi-sions of the General Pretreatment Regulations. The rule changes certain program requirements to be consistent with the National Pollutant Discharge Elimination System (NPDES) requirements for direct dischargers to surface waters, and will focus oversight resources on Industrial Users with the greatest potential for affecting POTW operations or the envi-ronment.

TSCA: TSCA Inventory TSCA Inventory Update Reporting Partially Exempted Chemicals List; Addition of 1,2,3-Propanetriol, 40 C.F.R. Part 710, (October 17, 2005) This direct final rule adds 1,2,3- propanetriol (CASRN 56-81-5) to the list of chemical substances in 40 C.F.R. 710.46(b)(2)(iv) which are exempt from reporting proc-essing and use information re-quired by 40 C.F.R. 710.52(c)(4).

CAA: Stratospheric Ozone Protection of Stratospheric Ozone: Process for Exempting Critical Uses of Methyl Bromide for the 2005 Supplemental Request,

40 C.F.R. Part 82 (October 18, 2005) After a comment period, the EPA withdrew a direct final rule re-garding the supplemental authori-zation of methyl bromide for critical uses. In the direct final rule, the EPA stated that it would publish a timely withdrawal of the rule if it received adverse comments. There will not be a second comment period on the action.

EPAAR: EPAAR Clauses Miscellaneous Revisions to EPAAR Clauses, 48 C.F.R. Parts 1504, 1509, 1529, 1536, 1537, & 1552 (October 25, 2005) Direct final action streamlines the EPA Acquisition Regulation (EPAAR) to be consistent with and non-duplicative of the Fed-eral Acquisition Regulation (FAR). Some EPAAR clauses will be revised and others will be removed. The action does not im-pose any new requirements on Agency contractors.

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Virginia Regulation Waste Pile Amendments, 21:26 Va. R. 3691 (amending 9 VAC 20-80; 9 VAC 20-80-60; 9 VAC 20-80-400; 9 VAC 20-80-480; 9 VAC 20-80-485) Effective October 5, 2005, the amendments provide additional exemption from the permit re-quirements for land clearing de-bris stored in piles. They allow owners and operators of waste piles to apply for a permit-by-rule rather than a full permit. The amendments also modify the waste pile management require-ments to allow for the storage in piles of organic material that is not putrescribable as long as it is stored in lined or covered waste storage areas. Finally, they re-quire that the operation plan for waste management facilities cover the issue of dust suppres-sion and include description of the management and disposition of waste materials and waste management procedures that en-sure that oldest materials are sent off-site for refuse or disposal be-fore newer materials.

Air Pollution Variance for International Paper, 21:24 Va. R. 3385-3390 (amending 9 VAC 5-230-10 through 9 VAC 5-230-120) Effective September 7, 2005, the regulation grants a variance that allows the International Paper Company to comply with the variance and an associated feder-ally enforceable state operating permit as an alternate demonstra-tion of compliance with provi-sions of the regulations of the board pertaining to new source review and new source control technology review for the Frank-lin Paper Mill. The variance es-tablishes emission caps that limit

the site wide emissions of the Franklin Paper Mill for the dura-tion of the variance.

Radio Advertisement for Variance to Solid Waste Management Regulations, 21:1 Va. R. 104 (amending 9 VAC 20-80-485) Effective October 5, 2005, the regulation eliminates the regula-tory provision that requires radio advertisements for tentative deci-sions to grant or deny applica-tions for variance from solid waste management regulations.

Nutrient Enriched Waters and Discharges in the Chesapeake Bay Watershed, 22:3 Va. R. 371-371 (amending 9 VAC 25-40-10; 9 VAC 25-40-30; 9 VAC 25-40-40; 9 VAC 25-40-50; adding 9 VAC 25-40-25; 9 VAC 25-40-70; repealing 9 VAC 25-40-20) Effective November 16, 2005, the amendments (1) revise the exist-ing point source policy for nutri-ent enriched waters to establish technology-based, annual average total nitrogen and total phospho-rus concentration requirements for certain dischargers located in the Chesapeake Bay watershed, and (2) revise the Water Quality Management Planning Regulation to establish total nitrogen and to-tal phosphorus annual waste load allocations for certain dischargers within Virginia’s portion of the Chesapeake Bay Watershed, and authorize a trading and offset program to assist in the achieve-ment and maintenance of the waste load allocations.

Phosphorus Index for Nutrient Management Training, 22:2 Va. R. 229 (amending 9 VAC 25-630-50)

Effective November 2, 2005, The Virginia Department of Conser-vation and Recreation amended the nutrient management training and certification regulations to include a phosphorus index as an alternate method to determine application rates

Total Maximum Daily Load Additions, 22:2 Va. R. 237 (amending 9 VAC 25-720-50, 9 VAC 25-720-90, and 9 VAC 25-720-130) Effective November 2, 2005, the amendments to the state’s Water Quality Management Planning Regulation include three new and one amended Total Maximum Daily Loads (TMDL. The amendments are to the Potomac-Shenandoah River Basin, Tennes-see-Big Sandy River Basin, and New River Basin. The new TMDLs are for Abrams Creek (Frederick County) and Opequon Creek (Clarke and Frederick counties) in the Shenandoah River Basin, and Hunting Camp Creek (Bland County) in the New River Basin and the modification is for the sediment TMDL for Lewis Creek (Russell County) in the Tennessee-Big Sandy River Basin

Local and Regional Water Supply Planning, 22:2 Va. R. 238-246 (adding 9 VAC 25-780-10 through 9 VAC 25-780-190) Effective November 2, 2005, the regulation establishes a planning process and criteria that all local governments will use in the de-velopment of local or regional water supply plans. These plans will be reviewed by the Depart-ment of Environmental Quality and a determination will be made by the State Water Control Board on whether the plans comply with

Environmental Law News this regulation. Within five years of a compliance determination by the board, the plans will be re-viewed to assess adequacy and

significant changes will require the submission of an amended plan and review by the board. All local programs will be reviewed,

revised and resubmitted to the Department of Environmental Quality every 10 years.

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Virginia State Bar Environmental Law Section 2005-06 Board of Governors

Heather Nixon Stevenson Chair McGuire Woods LLP 901 E. Cary Street Richmond, VA 23219-4030 (t) 804/775-1380 (f) 804/698-2241 hstevenson@mcguirewoods.com

Brooks M. Smith Vice Chair Hunton & Williams Riverfront Plaza, East Tower 951 E. Byrd St. Richmond, VA 23219-4074 (t) 804/787-8086 (f) 804/788-8218 bsmith@hunton.com

Rick R. Linker Secretary Dep’t of Environmental Quality P.O. Box 10009 Richmond, VA 23240-0009 (t) 804/ 698-4000 (f) 804/ 698-4346 rrlinker@deq.va.gov

Karen L. Lebo Immediate Past Chair Hunton & Williams 951 East Byrd Street Richmond, VA 23219 (t) 804/787-8953 (f) 804/787-8922 klebo@hunton.com

Caleb Adam Jaffe Editor Southern Environmental Law Center Suite 14 201 West Main Street Charlottesville, VA 22902-5065 (t) 434/977-4090 (f) 434/977-1483 cjaffe@selcva.org

Kathy R. Frahm Dept. of Environmental Quality P.O. Box 10009 Richmond, VA 23240-0009 (t) 804/698-4376 (f) 804/698-4346 krfrahm@deq.va.gov

David B. Graham Kaufman & Canoles Suite 300 4801 Courthouse Dr. Williamsburg, VA 23188 (t) 757/259-3855 (f) 757/259-3838 dbgraham@kaufcan.com

Karla C. Haynes City Attorney’s Office Real Estate Annex, Bldg. 20 2412 North Landing Road Virginia Beach, VA 23456 (t) 757/427-4531 (f) 757/698-2241 khaynes@vbgov.com

Kelley Anne Kline Smithfield Foods 111 Commerce Street Smithfield, VA 23430 (t) 757/ 365-8164 (f) 757/357-8165 kelleykline@smithfieldfoods.com

James T. Morgan, Jr. (“JT”) Environmental Protection Agency 1200 Pennsylvania Ave. NW Mailcode 2232 A Washington, DC 20004 (t) 202/564-7684 (f) 202/501-0579 morgan.james@epa.gov

Barbara M. Rose 8701 Berwickshire Drive Richmond, VA 23229 (t) 804/285-0287 jandbrose@comcast.net

Catherine D. Whitehead Liaison Virginia State Bar 707 E. Main St. Suite 1500 Richmond, VA 23219 (t) 804 775-0514 (f) 804 775-0501 whitehead@vsb.org