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9 U. Denv. Water L. Rev. 278 (2005-2006)
Virginia

handle is hein.journals/udenwr9 and id is 296 raw text is: WATER LAWREVIEW VIRGINIA Crutchfield v. State Water Control Bd., 612 S.E.2d 249 (Va. Ct. App. 2005) (affirming the trial court's approval of the State Water Control Board's decision to issue an effluent discharge permit to Hanover County, Virginia because state law dictates deferential treatment of agency decisions when supported by substantial evidence in the re- cord). In 1997, Hanover County in Virginia (County) applied for a Vir- ginia Pollution Discharge Elimination System (VPDES) permit to discharge treated wastewater into the Pamunkey River. Frances Broaddus Crutchfield and Henry Ruffin Broaddus (collectively Crutchfield) owned a farm along the Pamunkey River where the dis- charge would occur under the permit. Crutchfield and others op- posed the permit during the public hearing held by the State Water Control Board (SWCB). On April 28, 1999 the SWCB approved the County's VPDES permit. Crutchfield appealed the SWCB decision to the Circuit Court, City of Richmond. The trial court found the SWCB properly issued the permit, and Crutchfield appealed again to the Court of Appeals of Virginia, Alexandria. On appeal, Crutchfield argued the trial court improperly affirmed the SWCB's decision to approve the permit because: (1) the record did not contain substantial evidence the effluent discharge would not fur- ther degrade the water quality, and (2) state statute requires the Vir- ginia Department of Environmental Quality (VDEQ) to perform a load allocation prior to permit issuance to determine if the river can support new discharges if the water segment already does not meet water quality standards. The court found the record did contain substantial evidence to support the VPDES permit approval. Since established state law prin- ciples required deference to agency decisions, the court reasoned the numerous technical reports, consultation with other state and federal agencies, issuance of stricter permit requirements in response to public comments, and additional scientific evidence in the agency record es- tablished substantial evidence to support the agency's decision. Spe- cifically, the court noted the technical reports indicated the effluent restrictions placed on the permit were self-sustaining. In other words, the discharges into the river would not exceed water quality standards even if the river contained only effluent. The court also re- fused to consider new evidence introduced by Crutchfield during the appeal. The Virginia Administrative Procedure Act only allows sup- plementation of the record when no record exists. Here, a sufficient agency record already existed. Next, the court agreed with the trial court's interpretation of VPDES regulations concerning the permitting process. The VPDES Volume 9

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