Posted by: Patricia Salkin | October 21, 2016

VA Appeals Court Finds Regulation Providing that Presence of Only Certain Species of Wildlife Triggers a Determination of Significant Impact for Siting of Small Wind Energy Projects was Within DEQ’s Authority

Appellants Sue Karr, Harold H. McCall, James R. Webb, and Carol Ann White (collectively “appellants”) appealed the decision of the Circuit Court of the City of Richmond, which upheld the adoption of Permit(s) by Rule Regulation for the Construction and Operation of Small Wind Energy Projects (“the Regulations”) by the Virginia Department of Environmental Quality (“DEQ” or “the Department”) and approved by the Director of DEQ, David K. Paylor, pursuant to Code §§ 10.1–1197.5–1197.11. In its ruling, the circuit court also found that: DEQ complied with the statutory authority given to it pursuant to Code § 10.1–1197.6; because the term “wildlife” was ambiguous, DEQ’s interpretation of wildlife was to be given special weight; DEQ used its discretion appropriately and reasonably in its interpretation of the term “wildlife” as used in Code § 10.1–1197.6(B)(7); and DEQ used its discretion appropriately and reasonably in determining the appropriate triggers for the creation of mitigation plans.

DEQ first argued that the circuit court erred in overruling the plea in bar based on a failure of the appellants to comply with the 30–day notice requirement of Rule 2A:2(a). After DEQ promulgated the Regulations, the Rules of the Supreme Court of Virginia and the Code of Virginia were amended to clarify when the point of adoption occurs, thus creating the triggering event which begins the 30–day period to note an appeal. DEQ Director Paylor signed the Regulations on October 22, 2010, and one month later,, the Regulations were published in Register of Regulations with an effective date of December 22, 2010. On December 22, 2010, appellants filed their notice of appeal with DEQ. On May 23, 2011, the circuit court found “that the petition [sic] was filed within 30 days of publication of regulation.” The circuit court was correct as the notification of appeal was filed on December 22, 2010, which was thirty days after November 22, 2010, the date the Regulations were published in Register of Regulations. Therefore, the circuit court reasoned, the appellants properly noted their appeal under the first definition of “final adoption”

Regulation 9 VAC 15–40–10, DEQ defined “wildlife” as “wild animals; except however, that T&E insect species shall only be addressed as part of natural heritage resources and shall not be considered T&E wildlife.” Due to the lack of ambiguity in the regulation, the plain language controlled. The court concluded that “wildlife” as used in Code § 10.1–1197.6 referred all living things that were neither human nor domesticated; the mammals, birds, and fishes that were hunted by man for sport or food. Thus, the court found that the circuit court erred in concluding otherwise. It also found it was an error, as a matter of law, for the circuit court to give DEQ’s definition of the term “wildlife” greater weight; however, this error was harmless because the introductory phrase “where relevant” of Code § 10.1–1197.6(B)(7) directed DEQ to determine the relevant wildlife that would be impacted by the project. Additionally, DEQ had the subsequent authority under Code § 10.1–1197.6(B)(8) to determine what constituted a significant adverse impact to wildlife. Accordingly, the court held that the circuit court did not err in finding DEQ used its discretion appropriately and reasonably in its interpretation of the term “wildlife” as used in Code § 10.1–1197.6(B)(7) and in its determination of the appropriate triggers for the creation of mitigation plans.

 

Karr v. Virginia Dept. of Envtl. Quality, 789 S.E.2d 121 (Va. App. 2016)

 


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