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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
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.
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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