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WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD

 CHARLESTON, WEST VIRGINIA

 

SUELLEN MYERS, BEVERLY KIRK, PAUL BURKE, MELANIE CLIMIS, AND STEWARDS OF THE POTOMAC HIGHLANDS, Appellants,

v.

DIRECTOR, DIVISION OF WATER RESOURCES, Appellee,

and

ARCADIA DEVELOPMENT COMPANY, Intervenor.

 

Appeal No. 06-09-EQB

 

ORDER GRANTING APPELLEE'S AND INTERVENOR'S MOTIONS TO DISMISS AND DENYING APPELLANTS' MOTION FOR SUMMARY JUDGMENT AS MOOT

 

Appeal No. 06-09-EQB was filed with the West Virginia Environmental Quality Board ("Board") on May 15, 2006. In accordance with West Virginia Code §22B-I-7(f), an evidentiary hearing was scheduled for July 7,2006. The Board, upon its own motion, continued the hearing to September, 2006. Several parties filed Motions to Intervene in the appeal. The Board rejected all but one of the Motions to Intervene. Two appeals were filed in Kanawha County Circuit Court seeking reversal of the Board's Orders Denying Intervention. One of the Board's orders was upheld by the Kanawha County Circuit Court and the other is still pending. Thereafter, the Board scheduled status conferences in the matter and then in February the Board scheduled the evidentiary hearing for June 14,2007.

 

On May 14, 2007, Appellant filed "Appellants' Combined Motion and Memorandum for Summary Judgment."

 

On May 23, 2007, Appellee filed its "Motion to Dismiss Appeal and Response of Appellee in Opposition to Appellants' Motion for Summary Judgment." On June 4, 2007, Appellant filed its "Reply to DEP's Motion to Dismiss."

 

Also on June 4, 2007, Intervenor filed its "Prehearing Memorandum" and J0111S Appellee's Motion to Dismiss.

 

The Board delayed the evidentiary hearing on the matter pending the outcome of a hearing on the pending Motions. A hearing on the Motion for Summary Judgment and Motions to Dismiss was held before a quonlln of the Board and a comi repOlier on June 14, 2007. The Board was comprised of Dr. Edward Snyder, Mr. William Gillespie, Dr. D. Scott Simonton, and Dr. James Van Gundy. Board member Edward C. Armbrecht, Jr. was not present and did not participate in the deliberations. Appellants, Paul Burke, Suellen Myers, and Melanie Climis appeared pro se. Mary Anne Maul, Esquire, appeared on behalf of The Stewards of the Potomac Highlands. Joseph Lazell, Esquire, appeared on behalf of the West Virginia Depaliment of Envirolli11ental Protection ("WVDEP"). Richard Gay, Esquire, Peter Chakmakian, Esquire, and Nathan Cocluan, Esquire appeared on behalf of Arcadia Development Company ("Intervenor"). After consideration of the briefs and arguments by the paliies, case law, statutes, certified record, and notice of appeal, by unanimous order the Board finds that it does not have jurisdiction in this matter and thereby GRANTS the Motions to Dismiss and DENIES the remaining Motion for Summary Judgment as Moot.

 

By letter dated January 27, 2006, the Chief County Engineer for Jefferson County wrote to the West Virginia Department of Environmental Protection ("WVDEP") requesting an interpretation of two sections in the Construction Storm Water General Permit, WVINPDES Pennit Number WV0115924. The first section is C.15. It states that outlet markers must be posted on the stream bank at each outlet as provided in 47 CSR § 11-9, among other things. The second section is G4.3.2.(B). It requires permittees to describe in the storm water pollution prevention plan the measures that will be installed during construction to control storm water discharges from completed construction sites to protect the site and receiving stream from postconstruction erosion.

 

In his letter, the Chief County Engineer explained that the basis of his request was an opinion by the Jefferson County Plalming Commission that the requirements of both sections meant that developers would have to obtain drainage easements for storm water discharges from permitted construction projects that flow across propeliy not owned by the developers before discharging to a receiving stream. Consequently, the Plam1ing Commission concluded that a construction project could not proceed without a drainage easement for such discharges.

 

In contrast, the Engineer stated that he did not agree with the Commission's interpretation or conclusion. He believes the outlet marker requirements of 47 CSR § 11-19 were developed with commercial laundries and car washes and small waste water treatment facilities in mind, and that Section C.15 merely borrowed from 47 CSR § 11-19 to clarify the requirement to post an outlet marker at storm water management facilities. Similarly, he interpreted GA.e.2.(B) to require a non-erosive dissipation device at the inm1ediate point of discharge from a storm water construction site to protect the site and receiving stream from post-construction erosion.

 

In response to the Engineer's letter, the WVDEP stated in its letter of April 13, 2006, that the purpose of the Storm Water General Permit is to address sediment and erosion control in connection with storm water discharges from construction sites. The letter also stated that outlet markers, which are only required during construction as provided in C.15, placed at the immediate discharge point would be acceptable. The April 13, 2006 letter from WVDEP is the subject of this appeal.

 

During the hearing, the Appellee and Intervenor argued that the Board did not have jurisdiction in the matter because the Appellants appealed a letter from WVDEP's Assistant Director and the letter is not an action that is appealable to the Board. The Appellee and Intervenor also argued that Appellants lack standing to bring the appeal. The Intervenor also argued that the real issue is one of riparian interests and that the Board does not have jurisdiction over riparian water rights and that the United States Supreme Court has limited the application of the Clean Water Act to "navigable waters" and therefore the Board has no jurisdiction over the swales, ditches, and intennittent flows that stonn water management contemplates.

 

Appellants respond that all of the Appellants have standing and that the letter is an Order of the WVDEP that results in an illegal modification of the Construction Storm Water General Permit, WV/NPDES Permit No. WV0115924.

 

The statue that confers subject-matter jurisdiction on the Board to hear appeals is W.Va. Code § 22-11-21. The statute establishes three WVDEP actions that may be appealed to the Board by a person who is adversely affected or aggrieved by the action. They are:

 

1. An order made and entered by theWVDEP in accordance with the provisions of the State Water Pollution Control Act ("WPCA"), W.Va. Code § §22-11-1, et seq.

 

2. A failure or refusal of the WVDEP to act within the time specified in W.Va. Code § 22-11-11 ( e) on an application for a permit.

 

3. The terms or conditions of a permit granted under the WPCA.

 

W.Va. Code § 22-11-21.

 

As the West Virginia Supreme Court of Appeals has noted, "An administrative agency is but a creature of statute, and has no greater authority than conferred under the governing statutes." State ex ref. Hoover v. Berger, 199 W.Va. 12,6,483 S.E.2d 12,16 (1996).

 

The Board finds that the letter that is subject of this appeal is not a failure or refusal of the WVDEP to act within the time specified and the Board further finds that the letter is not a te1111 or condition of a permit granted under the WPCA. The remaining question is whether or not the letter constitutes an "order" made or entered by the WVDEP.

 

The West Virginia Supreme Court examined the authority of this Board in a 2002 case Monongahela Power Co. v. Chief, Office of Water Resources, Div. of Environmental Protection. In the Monongahela Power case, the Comi reviewed the authOlity of the Board and noted that it is proper to review the definition of Order contained in the Administrative Procedures Act, W.Va. Code § 29A-1-2(e). Monongahela Power Co. v. Chief, Office of Water Resources, Division of Environmental Protection, 211 W.Va. 619, 567 S.E.2d 629 (2002). The Administrative Procedures Act defines an order as "the whole or any part of the final disposition (whether affirmative, negative, injunctive or declaratory in f01111) by an agency or any matter other than rule making[.]" W.Va. Code §29-A-1-2(e).


 

During oral argument on the Motions to Dismiss, the Appellants argued that the letter written by the assistant director was a declaratory position of the WVDEP, which in effect modified the permit and constituted a final disposition and, therefore, is an "order" as defined by the Administrative Procedures Act.

 

Permits and modifications are signed by the Director of the Division of Water and Waste Management. This letter was signed by the assistant director in response to a request made by the Jefferson County Chief Engineer. The letter is an interpretation of the permit by the assistant director of the agency that issued the permit. It is not directed to "all permit holders" or to a particular applicant. The Board finds that because it is not a final disposition by the agency, it cannot be an "order1" as defined by the Administrative Procedures Act. Therefore the Board finds that it does not have jurisdiction on this matter. The Board finds that the letter appears, on its face, to contradict or cast confusion on the terms and conditions of the permit. However, it is the permit that must guide and direct the permit registrants and permit holders. It is the language of a permit that gives license to a permit holder on how it must operate.

 

The Board is not ruling on the contents of the letter or its impact on the general permit. The Board does not have jurisdiction to rule on the contents of the letter. A registration associated with the general permit is an action that is appealable to this Board. If an operator is operating outside the terms or conditions of the permit and causing damage to a property owner, that action would create an enforcement issue for WVDEP to administer as it sees fit. It is not appropriate for this Board to offer legal advice on the appropriate venue or forum for potential legal challenges outside the authority of the Board. It is only for this Board to rule on questions raised before it. In this instance, the Board finds that it does not have jurisdiction and therefore must dismiss the appeal from its docket.

 

Because the Board has dismissed the appeal for lack of jurisdiction, a threshold question, it is unnecessary for it to rule on the remaining questions of standing, riparian rights, and summary judgment.

 

It is so ORDERED, on this the 21st day of June 2007, by the Environmental Quality Board.

 

 

1By finding that the letter is not an order, the Board advises permit holders, the Jefferson County Chief Engineer and the Jefferson County Planning Commission that the letter should not be considered to change a term or condition of the existing permit. Further, it does not modify or alter the permit.