                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


SUZANNE H. SCHEER,
 JULIAN W. SCHEER, MR. AND MRS.
 STEVEN RODGERS, BARBARA KRAMER
 SILBERSIEPE, HALLIDAY AND WILLIAM
 WOODBURY, MICHAEL AND MARGRETA
 STEVENS, FERA AND ARMAND SIMONE AND
 DEAN N. McDOWELL
                                         MEMORANDUM OPINION * BY
v.   Record No. 0095-00-4                JUDGE RICHARD S. BRAY
                                              JULY 17, 2001
COMMONWEALTH OF VIRGINIA, ex rel.
 STATE WATER CONTROL BOARD AND
 COUNTY OF FAUQUIER


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                      Thomas D. Horne, Judge

          Gail Starling Marshall for appellants.

         Deborah Love Feild, Assistant Attorney General
         (Mark L. Earley, Attorney General, on brief),
         for appellee Commonwealth of Virginia, ex rel.
         State Water Control Board.

          Kevin J. Burke, Deputy County Attorney (Paul S.
          McCulla, County Attorney, on brief), for appellee
          County of Fauquier.


     Suzanne H. Scheer, et al., (appellants) appeal an order of

the trial court affirming the issuance by the State Water Control

Board (SWCB) of a Virginia Water Protection Permit (VWPP) to

Fauquier County, Virginia (Fauquier).   Citing numerous perceived


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
deficiencies in the permit and underlying record, appellants

contend the SWCB "exceeded its statutory authority and violated

the statutory mandates for such a permit."   Finding no error, we

affirm the trial court.

     The parties are fully conversant with the voluminous and

complex record, and this memorandum opinion recites only those

facts necessary to a disposition of the appeal.   In accordance

with well established principles, we review the evidence in the

light most favorable to the prevailing party below, Fauquier in

this instance.

                                   I.

     Pursuant to Code § 62.1-44.15:5, Fauquier applied to SWCB for

a VWPP to construct a concrete dam across Cedar Run, a local

stream, together with attendant undertakings and facilities (the

project), to provide a water supply to Fauquier and aid in flood

control.   Designated "Cedar Run 6[,] Auburn Reservoir (Dam)," the

resulting lake would embrace a surface area of approximately 183

acres, inundate 16 acres of existing wetlands and 11,000 feet of

"stream channel," and otherwise impact Cedar Run and related

habitat and adjacent properties.    Because the project involved the

"discharge of dredge or fill material" into Cedar Run, § 404 of

the Federal Clean Water Act, 33 U.S.C. § 1341, (federal act),

required a permit from the United States Corps of Engineers (the

Corps).    Section 401 of the federal act precludes issuance of such

permit absent either "a certification from the State in which the

                                - 2 -
discharge originates or will originate" that the proposed activity

will comply with the federal act, or a waiver of such

certification.   33 U.S.C. § 1341(a)(1).

     A VWPP issued in accordance with Code § 62.1-44.15:5(A)

"shall constitute the certification required under § 401 of the

[federal act]," Code § 62.1-44.15:5(A).    The SWCB is required to

issue such permit once "it has determined that the proposed

activity is consistent with the provisions of the [federal act]

and the State Water Control Law and will protect instream

beneficial uses."   Code § 62.1-44.15:5(B).   "The preservation of

instream flows for purposes of . . . the protection of fish and

wildlife resources and habitat [and] recreation . . . is a

beneficial use of Virginia's waters. . . .    Domestic and other

existing beneficial uses 1 shall be considered the highest priority

uses."   Code § 62.1-44.15:5(C).   In resolving the issues incident

to a VWPP, the SWCB may impose conditions on the permit,

including, "but . . . not limited to, the volume of water which

may be withdrawn as a part of the permitted activity" and

"compensating mitigation for adverse impacts to wetlands."

Code§ 62.1-44.15:5(C), (E).


     1
       "'Beneficial use'" is defined by Code § 62.1-10 to "mean[]
both instream and offstream uses. Instream beneficial uses
include, but are not limited to, the protection of fish and
wildlife habitat, . . . recreation . . . and cultural and
aesthetic values. Offstream beneficial uses include, but are
not limited to, domestic (including public water supply) . . .
uses. Public water supply uses for human consumption shall be
considered the highest priority."

                               - 3 -
     Acting on Fauquier's application, the SWCB solicited both

public and governmental comment, conducted hearings and received

considerable documentary evidence.       Accordingly, the resulting

permit was subject to numerous conditions addressing a myriad of

issues related to the project.    Aggrieved by the SWCB decision,

appellants unsuccessfully sought "judicial relief" in the trial

court pursuant to Code § 62.1-44.29, a procedure governed by the

provisions of Code § 9-6.14:1 et seq., the Administrative Process

Act (APA).    Unsuccessful, appellants now appeal to this Court.

See Code § 62.1-44.30.

                                  II.

     Code § 9-6.14:17 establishes "[t]he parameters of judicial

review of 'agency action.'"    Envtl. Def. Fund, Inc. v. Va. State

Water Control Bd., 15 Va. App. 271, 277, 422 S.E.2d 608, 611

(1992).    At the outset, the statute requires "the party

complaining of agency action to designate and demonstrate an error

of law subject to review by the court."      Code § 9-6.14:17.   "Such

issues of law," specifically enumerated by Code § 9-6.14:17,

"'fall into two categories: first, whether the agency . . . acted

within the scope of [its] authority, and second, whether the

decision itself was supported by the evidence.'" 2     Id. (citing


     2
         "[I]ssues of law" subject to review by the court include:

             (i) accordance with constitutional right,
             power, privilege, or immunity, (ii)
             compliance with statutory authority,
             jurisdiction limitations, or right as

                                 - 4 -
Johnson-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1,

7 (1988)).

             Where the agency has the statutory
             authorization to make the kind of decision
             it did and it did so within the statutory
             limits of its discretion and with the intent
             of the statute in mind, it has not committed
             an error of law in the first category. The
             second category of error is limited to a
             determination whether there is substantial
             evidence in the agency record to support the
             decision.

Johnson-Willis, 6 Va. App. at 242, 369 S.E.2d at 7.

     "'The phrase "substantial evidence" refers to such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.    Under this standard, . . . the court may

reject the agency's findings of fact only if, considering the

record as a whole, a reasonable mind would necessarily come to a

different conclusion."     Aegis Waste Solutions, Inc. v. Concerned

Taxpayers of Brunswick Co., 261 Va. 395, 404, 544 S.E.2d 660,

665 (2001) (citation omitted).    "In contrast, judicial review of

a 'legal issue' requires 'little deference[,]' unless it . . .

'falls within an agency's area of particular expertise.'"


             provided in the basic laws as to subject
             matter, the stated objectives for which
             regulations may be made, and the factual
             showing respecting violations or entitlement
             in connection with case decisions, (iii)
             observance of required procedure where any
             failure therein is not mere harmless error,
             and (iv) the substantiality of the
             evidential support for findings of fact.

Code § 9-6.14:17.

                                 - 5 -
Envtl. Def. Fund, 15 Va. App. at 278, 422 S.E.2d at 612

(citation omitted) (emphasis added).

     Thus, "agency action, even when 'supported by substantial

evidence,' must be set aside if judicial review reveals a

failure 'to observe the required procedures or to comply with

statutory authority.'"    Id. (citation omitted).

            However, where the question involves an
            interpretation which is within the
            specialized competence of the agency and the
            agency has been entrusted with wide
            discretion by the General Assembly, the
            agency's decision is entitled to special
            weight in the courts[,] . . . "and judicial
            interference is permissible only for relief
            against . . . arbitrary or capricious action
            that constitutes a clear abuse of the
            delegated discretion."

Johnson-Willis, 6 Va. App. at 244, 369 S.E.2d at 8 (citation

omitted).

     Appellants' several assignments of error clearly advance

legal issues.   However, such issues implicate both legal and

factual questions and "mixed question[s] of fact and law [are]

reviewable by this Court on appeal."    The Country Vintner, Inc.

v. Rosemont Estates, 35 Va. App. 56, 63, 542 S.E.2d 797, 800

(2001).   Thus, guided by Code § 9-6.14:17, we consider the

"[i]nterrelated factual and legal issues . . . together in the

context of the entire record," examining each "under the

appropriate standard of review" and with due deference, to

determine "'whether the result reached . . . could reasonably be

said, . . . to be within the scope of the legal authority of the

                                - 6 -
agency.'"       Envtl. Def. Fund, 15 Va. App. at 279, 422 S.E.2d at

612.       Viewed accordingly, we address appellants' several

arguments seriatim.

                                   III.

       Appellants first assert that the VWPP in dispute fails to

protect "instream beneficial uses," accord "highest priority" to

existing beneficial uses, and comport with the federal act, as

mandated by Code § 62.1-44.15:5(B).        In support of such

contentions, appellants rely upon a "submission" by the Virginia

Department of Game and Inland Fisheries (DGIF) concluding that

"loss of stream habitat," resulting from inundation and reduced

stream "flows and increased water temperature," 3 "probably will

adversely impact" certain "sportfish species," specifically

including the propagation of smallmouth bass, and recreational

"stream fishing" opportunities.      Further, appellants maintain

that "low flows authorized by the [VWPP]" do not "protect . . .

[winter and early spring] recreational . . . canoeing" on Cedar

Run.       In a related argument, appellants reason that loss of

smallmouth bass breeding habitat, an existing beneficial

instream use, impermissibly compromises the water quality of

Cedar Run.




       3
       DGIF speculated that periodic "cold water releases"
intended to remediate temperature increases "may result in
substantial changes in the existing warmwater aquatic
community."

                                   - 7 -
     Appellants' challenges are predicated on the notion that a

VWPP in conformity with the mandates of Code § 62.1-44.15:5 must

"do no harm" to "beneficial stream uses."   However, appellants'

argument ignores the manifest purpose of the permitting process

and attendant responsibility and authority of the SWCB pursuant

to the State Water Control Law, 4 Code § 62.1-44.2, et seq.   The

certification mechanism of Code § 62.1-44.15:5 contemplates

alteration and disruption of beneficial stream uses resulting

from the "discharges of dredge or fill material," through the

issuance of permits for such activity in conjunction with § 404

of the federal act.   However, in acting on a VWPP application,

the SWCB is directed to protect such uses through denial of a

permit, if necessary, or the imposition of appropriate

conditions.   Thus, to construe the permit standard as a

precluding any "harm" would obviate the statutory purpose, an

absurd result.   Branch v. Commonwealth, 14 Va. App. 836, 839,

419 S.E.2d 422, 424 (1992) ("The plain, obvious, and rational

meaning of a statute is always preferred to any curious, narrow

or strained construction, a statute should never be construed so

that it leads to absurd results.").




     4
       State Water Control Law is intended, in pertinent part,
"to: (1) protect existing high quality state waters . . .
promote water resource conservation, management and distribution
. . . in order to provide for the health, safety and welfare of
the present and future citizens of the Commonwealth." Code
§ 62.1-44.2.

                               - 8 -
     Here, the record discloses that Cedar Run presently suffers

from "many days when the flow is zero," a "very damaging

condition for aquatic life."   "SPECIAL CONDITIONS" of the VWPP

establish a "threshold flow" to assure "that the project will

not cause [a "streamflow level"] to occur more often than it

would have occurred without the project" and a "floor flow" to

maintain a "streamflow level" "at all times."   Threshold flows

imposed by the SWCB following the original "submission" by DGIF,

comported with DGIF recommendations.   "[C]ontrol outlet

structures . . .[,] capable of releasing the required minimum

instream flows into Cedar Run," insure the maintenance of

required flow rates, and mandatory reporting to the SWCB

monitors compliance.   Violations must be disclosed to SWCB

"within one week following discovery."

     The Department of Environmental Quality (DEQ), in

commenting on issues pertaining to the VWPP, noted that

stratification of lake water oftentimes produces "warmer, less

dense oxygenated water floating on top of colder, dense,

deoxygenated water," with seasonal variations, and uncontrolled

releases could degrade "downstream" water.   Accordingly, the

permit mandates "[w]ater quality standards for dissolved oxygen

and temperature shall not be violated by the [project]."    An

"intake tower . . . [with] multiple intake ports" draws from

different lake levels to "control temperature" and reoxygenation



                               - 9 -
occurs "[a]s water falls . . . to the bottom of the spillway."

Monitoring devices are required to demonstrate compliance,

together with specified reporting requirements.

     An "Environmental Assessment Report" (EA) 5 prepared by the

USDA Soil Conservation Service in response to the instant VWPP

application concluded that "[f]isheries resources upstream of

the pool area will not be affected" by the project and "will be

improved in the pool and downstream," with minimum flow levels

"to insure the integrity of the downstream . . . resource," and

no increase in water temperature, resulting in "a significant

downstream water quality benefit."     While the project will "have

an adverse impact on . . . terrestrial species . . . within the

pool area[,] it will provide aquatic animals an expanded

habitat."

     Presently, increased water flow in Cedar Run during winter

and spring permits canoeing in areas below the dam.    The "white

water" enhancement of such activity is dependent upon variable

stream conditions and, clearly, canoeing is impossible during

periods of little or no creek flow.    The evidence before the

SWCB suggests that creek flows would remain seasonably cyclical,

subject to controls to avoid either the extremes of flood or


     5
       Appellants' contention that the EA, which supplements an
Environmental Impact Statement (EIS), not in evidence, prepared
in 1975 in response to a very different proposal, is unreliable
raises an issue of weight, not admissibility. We find the SWCB
properly admitted the EA into evidence and considered related
findings, conclusions and recommendations.

                              - 10 -
drought, conditions inconsistent with recreational use.    The

record does not support appellants' contention that post-project

stream flows would eliminate canoeing.

     Thus, the record, including documentary proofs and other

evidence, clearly reflects a VWPP which protects existing

instream uses, properly issued upon consideration of facts and

circumstances before the SWCB.   Although characteristics of

Cedar Run within the immediate project area are altered,

downstream water quality, habitat, fisheries resources and

recreational opportunities are either preserved or enhanced. 6

Under such circumstances, the SWCB properly exercised statutory

authority in issuance of the VWPP.

     Next, appellants assert the instant VWPP improperly permits

mitigation for wetlands destroyed by the project to occur in

another watershed, thereby failing to "offset harm to water

quality" within the impacted Cedar Run watershed and, further,

approves a "[m]itigation concept," conditioned upon later

submission of the requisite "final . . . plan for DEQ approval"

in violation of 9 VAC 25-210-80(A)(2)(K).

     In response to a "[m]itigation concept" submitted to the

SWCB by Fauquier, a "SPECIAL CONDITION" of the VWPP requires



     6
       Because existing instream beneficial uses were not
improperly compromised by the VWPP, we decline to address
appellants' subsidiary argument that the trial court
"sacrificed" such uses to "accommodate . . . proposed offstream
uses."

                              - 11 -
Fauquier "to mitigate for cumulative loss of 16 acres of

wetlands by enhancing, creating and preserving wetlands on the

100 acre plus wetland complex . . . owned by Fauquier" in

another watershed.   Details of the required mitigation are

specified in the permit and a "final plan," developed in

cooperation with the Natural Resources Conservation Service and

the Corps, must be submitted "to DEQ for review and approval

within twenty-four months of [the VWPP] issuance" date.

     Code § 62.1-44.15:5(E) provides

          [w]hen a [VWPP] is conditioned upon
          compensatory mitigation for adverse impacts
          to wetlands, the applicant may satisfy all
          or part of such mitigation requirements by
          the purchase or use of credits from any
          [specified] wetlands mitigation bank . . .
          as long as: (1) the bank is in the same
          . . . river watershed[] as the impacted site
          . . . .

9 VAC 25-210-90(C) requires a VWPP permittee "to provide

mitigation of . . . adverse [wetland] impact on an in kind basis

where impacts cannot be avoided."

     Appellants advocate a construction of both the statute and

rule inconsistent with the clear meaning of each.   Code

§ 62.1-44.15:5(E) expressly mandates wetland mitigation within

the same watershed only when such mitigation is accomplished

through "credits" purchased from a "mitigation bank," a

circumstance not present on the instant record.   Nothing

suggests legislative intent to impose a like requirement on all

mitigation plans.    "Where a statute is unambiguous, the plain

                               - 12 -
meaning is to be accepted without resort to the rules of

statutory interpretation."    Last v. Va. State Bd. of Med., 14

Va. App. 906, 910, 421 S.E.2d 201, 205 (1992).   Similarly, a

plain reading of 9 VAC 25-210-90(C) does not reflect an intent

to confine mitigation to the watershed directly impacted by

wetland loss, but, rather, simply that such wetlands be replaced

"in kind," or by "similar" wetlands, without specifying

location.    See Black's Law Dictionary 1383 (6th ed. 1990).

     Water quality issues indirectly related to wetlands

destruction resulting from the project are subsumed in the

mitigation considerations, while impacts immediately attendant

to the activity are otherwise addressed by the SWCB review

process.    Here, the EA indicated "[t]he plan will have

significant downstream water quality benefit," reducing

sediment, turbidity and pollution, maintaining the existing

"III-B" DEQ classification of "stream quality" and

"complimentary to the on-going programs to improve the bay."

     With respect to appellants' challenge to the sufficiency of

the application, the adequacy of the "mitigation concept"

initially submitted to SWCB was an issue governed by applicable

regulations, to be determined in the exercise of the Board's

sound discretion.    See Va. Real Estate Bd. v. Clay, 9 Va. App.

152, 159, 384 S.E.2d 622, 626 (1989) ("[T]he interpretation

which an administrative agency gives its regulation must be

accorded great deference and will not be set aside unless

                               - 13 -
arbitrary and capricious.").    Thus, again, appellants have not

demonstrated an error of law by the SWCB.

     Lastly, appellants urge us to "vacate[]" the VWPP because

the SWCB "failed to include enforcement mechanisms for . . .

conditions" specified in the permit.     However, review of the

permit discloses numerous monitoring, reporting and notification

directives included as "SPECIAL CONDITIONS."    The SWCB is not

required to specify monitoring procedures which VWPP applicants

must adopt to warrant compliance with permit conditions.    The

SWCB is empowered to inspect and investigate "as . . . necessary

to carry out the provisions" of State Water Control Law, Code

§ 62.1-44.13, and pursue both civil and criminal penalties for

violations, including noncompliance with VWPP certifications.

See Code § 62.1-44.20 et seq.    Thus, ample safeguards assure

performance of conditions imposed on the instant permit, and

otherwise by law, with respect to construction and operation of

the project.

     Accordingly, for the reasons stated, we affirm the trial

court.

                                                Affirmed.




                                - 14 -
