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2013 Virginia Attorney General Reports and Opinions 1 (2013)

handle is hein.sag/sagva0044 and id is 1 raw text is: COMMONWEALT of VIRmeOLIA Ogrt of the Atoarney genewu January 4, 2011 FAK430488-499t The Honorable Thomn C. Wright Jr. Member, House of Delegates Post Office Box71323 Victoria, Vtginia 23974 Dear Delegate Wright: I am responding to your request for an official advisory opinion in accordance with. 2.2-505 of the Code of Virginia. Issues Presented You preem several questions related to the Dan Safety Act and the application.by the Department of Consevation and Recration (OR) of the agricultural exemption it contWins.' You first ask whether a farm pond must be used fortheirrigation of crops to qualify for the exemption. Yoa also inquite whether the agricultural exemption applies in two situations: i) for a farm pond available for fire suppresion when located within forestland where conventional silvioultureis practiced professionally, or 2) for a pond located i the middle of a pasture from which hay is et, hay being at pt as well as an agritkltural conrthdity. Finally, you ask what constitutes being a forester within the contex of the Dam Safety Act and atendent regulations and guidance, and specifically, how a forester differs from an ozchardist. Respease It is my opinion that irrigation is not a necessary element for a fann pond to qualify for the agricuitaral exemption, provided the htpounded waters are utilized in a mhanner found to be required for agicutural production. it is ftiher my opinion that, because the determination of whether the agricultural exemption applies to any partibular structuft is primarily a factual question reserved to the Dhrotir of DCR. on. a case-by-case basis, I most decline to render an opinion on the issues raised in the second question presented. Finally it is my opinion that, absent a specffic definition in the Dan Safety Act, it is appropriate to look to the definition ofthe term fratr provided in the statuteS governing the Department of Forestry as an intepretative guide, and that a forester differs fiom an orchardist in that an orchardist harvests fruit nuts or sap from trs, while a forester ir conorned with the timber itself. I You indicate tat some of these questions arise fita zports to you regmning DCI enfoatemt of the applicable regulations, You state that you have been litbred that DCR has token the position that fire suppression In a forest is not a use that would qualify the pond for the agriculural examption and that DCR approves the agiodural exemption for such a. pond only if water is being pumped from the pond for Irigationpurposes.

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